HomeMy WebLinkAbout2023-66 CC ResolutionRESOLUTION NO.2023-66
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TEMECULA APPROVING THAT CERTAIN PURCHASE
AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS BETWEEN LAM NGO & HUYEN LAM
TRAN AND THE CITY OF TEMECULA IN CONNECTION
WITH THE CALLE GIRASOL/NICOLAS ROAD
CONNECTION STREET AND DRAINAGE IMPROVEMENTS
(PORTIONS OF APN 957-090-022) AND MAKING FINDINGS
THAT NO FURTHER ENVIRONMENTAL REVIEW IS
REQUIRED PURSUANT TO SECTION 15162 OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
GUIDELINES AND SECTION 21166 OF THE PUBLIC
RESOURCES CODE
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS
FOLLOWS:
Section 1. Findings.
A. The City of Temecula ("City") is a municipal corporation, located in the County of
Riverside, State of California. Pursuant to Government Code Section 37350, the City is authorized
to purchase, lease, receive, hold, and enjoy real and personal property, and control and dispose of
it for the common benefit.
B. The City is a participant of the proposed extension of Nicolas Road from Butterfield
Stage Road to the Calle Girasol/Nicolas Road Connection ("Project") pursuant to the Development
Agreement originally approved between the City of Temecula and Ashby USA, LLC (also known
as the Pre -annexation and Development Agreement) pursuant to Ordinance No. 02-14. As the
Developer, Woodside 05S, LP, a California Limited Partnership and Wingsweep Corporation, a
California corporation are the successors to certain of these approved applications for development
and propose to construct the Sommers Bend Project. To facilitate the orderly development of the
Sommers Bend Project, the Third Amendment to the Development Agreement was approved
subject to certain conditions set forth on Exhibit D (New Attachment 5-A to Development
Agreement) to said Third Amendment. Specifically, Condition 3(A) to Exhibit D contains a
specific condition of approval requiring Developer to construct certain public improvements in
connection with Nicolas Road from Butterfield Stage Road to the Calle Girasol/Nicolas
Connection.
C. The Project will construct the public street, drainage, access, public utility and
related improvements in connection with the proposed extension of Nicolas Road from Butterfield
Stage Road to the Calle Girasol/Nicolas Road. In furtherance of the Project, the City seeks to
acquire (i) approximate 51,003 square foot conservation easement, and (ii) an approximate 83,324
square foot temporary construction easement with a term of twelve months and covenant
authorizing the construction of certain permanent improvements in portions of said 83,324 square
foot area (collectively "Subject Property Interests") on portions of the real property located at
31249 Indian Summer Road in the City of Temecula, California, and identified as Riverside
County Tax Assessor's Parcel Number 957-090-022 ("Property").
D. The City seeks to acquire the Subject Property Interests for public use, namely for
conservation purposes and for the construction of certain public off -site improvements, consisting
of public street, drainage, and related improvements, and all uses necessary or convenient thereto
in connection with the proposed extension of Nicolas Road from Butterfield Stage Road to the
Calle Girasol/Nicolas Road connection ("Project"). The Irrevocable Offer of Dedication dedicates
to the City pursuant to Government Code Section 7050 that certain 51,003 square foot conservation
easement described in the Irrevocable Offer. The City seeks to acquire the Conservation Easement
for the benefit of Fallbrook Lands Conservancy. The authorization to use the approximate 83,324
square foot temporary construction easement area ("TCE Area") will facilitate the construction of
the public street, drainage, and related improvements in connection with the Project. The grant of
the rights to use the 83,324 square foot TCE Area will also authorize the City to construct certain
permanent rip -rap and related drainage improvements in portions of said 83,324 square foot TCE
Area to protect the street improvements from erosion and to minimize flooding. These permanent
rip -rap and related drainage improvements will also help minimize flooding in the remainder
portions of the Property.
E. The City wishes to proceed with the proposed acquisition of the Subject Property
Interests in connection with the Project and the owners of record, Lam Ngo and Huyen Lam Tran
("Owners"), wishes to sell the Subject Property Interests to the City pursuant to the terms of the
attached Purchase and Sale Agreement and Joint Escrow Instructions Between Lam Ngo & Huyen
Lam Tran and the City of Temecula in Connection with the Calle Girasol/Nicolas Road
Connection Street and Drainage Improvements (Portions of APN 957-090-022).
F. The Project, as planned and designed, is in the public interest and necessity and is
needed to construct the public street, drainage, access, public utility and related improvements in
connection with the proposed extension of Nicolas Road from Butterfield Stage Road to the Calle
Girasol/Nicolas Road Connection. The Subject Property Interests are required for conservation
easement purposes, to facilitate the construction of the Project, and for the construction of
permanent rip -rap and related drainage improvements in portions of the approximate 83,324 square
foot TCE Area. The Project, as planned and located, is consistent with the circulation and street
system in the Roadway Plan depicted in the City of Temecula General Plan.
Section 2. Approval of Purchase and Sale Agreement and Joint Escrow Instructions
Between Lam Ngo & Heen Lam Tran and the City of Temecula in Connection with the Calle
Girasol/Nicolas Road Connection Street and Drainage Improvements (Portions of APN 957-090-
022) and Exhibits Thereto. The City Council of the City of Temecula finds that the acquisition of
the Subject Property Interests located on portions of the Property is in the public interest and
necessity and is necessary for the construction of the Project. The City Council of the City of
Temecula hereby approves that certain Purchase and Sale Agreement and Joint Escrow
Instructions Between Lam Ngo & Huyen Lam Tran and the City of Temecula in Connection with
the Calle Girasol/Nicolas Road Connection Street and Drainage Improvements (Portions of APN
957-090-022) and Exhibits Thereto ("Agreement") attached hereto and incorporated herein by this
reference, with such changes in the Agreement as may be mutually agreed upon by Lam Ngo and
Huyen Lam Tran and the City Manager as are in substantial conformance with the form of the
Agreement on file in the Office of the City Clerk. A copy of the final Agreement, when executed
by the City Manager, shall be placed on file in the Office of the City Clerk. Copies of the recorded
Irrevocable Offer of Dedication of Conservation Easement and the Grant of Temporary
Construction Easement and Covenant for Construction of Certain Permanent Improvements shall
also be placed on file in the Office of the City Clerk.
Section 3. Environmental Review. The environmental effects of the Project and the
acquisition of the real property interests needed for the Project were studied and analyzed as an
integral part of the Environmental Impact Report for the Roripaugh Ranch Specific Plan ("EIR")
pursuant to the California Environmental Quality Act ("CEQA"), Public Resources Code Section
21000 et seq., and the CEQA Guidelines, 14 Cal. Code Regs. Section 15000 et seq. ("CEQA
Guidelines").
On November 26, 2002, the City Council adopted Resolution 02-111, A Resolution of the
City Council of Temecula, California, Certifying the Final Environmental Impact Report Prepared
for the Roripaugh Ranch Specific Plan and Related Planning Applications Actions and Adopting
the Environmental Findings Pursuant to the California Environmental Quality Act, and the State
CEQA Guidelines, a Mitigation Monitoring and Reporting Program and a Statement of Overriding
Considerations, in Connection therewith for the Roripaugh Ranch Specific Plan, Located near the
Future Intersection of Butterfield Stage Road and Nicolas Road (Planning Application 94-0076).
Said environmental documents are incorporated herein by this reference.
Since the adoption of the EIR, five EIR Addendums have been prepared for the
Development Project area. The most recent Addendum to the EIR was adopted on January 14,
2020.
On July 11, 2023, City Staff reviewed the environmental documentation prepared in
connection with the Development Project in connection with Staffs review of the proposed
acquisition of the Subject Property Interests for the Project. City Staff reviewed the EIR, the First
Addendum to the EIR adopted on April 23, 2013, the Second Addendum to the EIR adopted on
March 22, 2016, the Third Addendum to the EIR adopted on January 23, 2018, the Fourth
Addendum to the EIR adopted on November 6, 2019, the Fifth Addendum to the EIR adopted on
January 14, 2020, and determined that the Project and acquisition of the Subject Property Interests
needed for the Project are consistent with the EIR and Addenda to the EIRs. Pursuant to the criteria
of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, City
Staff concluded that no substantial changes have occurred in the Development Project, no
substantial changes have occurred in the circumstances under which the Development Project is
undertaken, and the City has obtained no new information of substantial importance that would
require further environmental analysis. These environmental findings are the appropriate findings
with respect to the proposed acquisition of the Subject Property Interests for the Project.
Section 4. Ci Y Manager's Authority. The City Manager (or the City Manager's
designee), is hereby authorized, on behalf of the City, to take all actions necessary and convenient
to carry out and implement the Agreement, and to administer the City's obligations,
responsibilities, and duties to be performed under the Agreement, including but not limited to (i)
execution of the (i) Agreement (ii) consent to recordation of the Irrevocable Offer of Dedication
of the Conservation Easement, and (iii) the Temporary Construction Easement and Covenant for
Construction of Certain Permanent Improvements in connection with the dedication to the City of
the approximate 51,003 square foot conservation easement, and the approximate 83,324 square
foot temporary construction easement with a term of twelve months and covenant authorizing the
construction of certain permanent improvements in portions of said 83,324 square foot area. the
City Manager is further authorized to execute any applicable documents to complete the
transactions contemplated by the Agreement, including escrow instructions, and other similar
agreements and documents as contemplated by or described in the Agreement or as necessary and
convenient to implement the Agreement and to effectuate the transfer to the City of the Subject
Property Interests and terms of the Irrevocable Offer of Dedication.
Section 5. Certification. The City Clerk shall certify the adoption of this resolution.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula
this 25 h day of July, 2023.
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Randi J , City Clerk
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Zak Schwank, Mayor
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the foregoing
Resolution No. 2023-66 was duly and regularly adopted by the City Council of the City of
Temecula at a meeting thereof held on the 251h day of July, 2023, by the following vote:
AYES: 4 COUNCIL MEMBERS: Brown, Kalfus, Schwank, Stewart
NOES: 0 COUNCIL MEMBERS: None
ABSTAIN: 0 COUNCIL MEMBERS: None
ABSENT: 1 COUNCIL MEMBERS: Alexander
Randi Johl, City Clerk
5
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS BETWEEN LAM NGO & HUYEN LAM TRAN AND THE
CITY OF TEMECULA IN CONNECTION WITH THE CALLE
GIRASOL/NICOLAS ROAD CONNECTION STREET AND DRAINAGE
IMPROVEMENTS (PORTIONS OF APN 957-090-022)
This Purchase and Sale Agreement and Joint Escrow Instructions Between Lam Ngo,
Huyen Lam Tran, and the City of Temecula in connection with the Calle Girasol/Nicolas Road
Connection Street and Drainage Improvements (Portions of APN 957-090-022) ("Agreement") is
entered into by and between LAM NGO and HUYEN LAM TRAN ("Seller") and the CITY OF
TEMECULA, a municipal corporation ("Buyer" or "City"), and constitutes an agreement to
purchase and sell real property between Seller and Buyer and the joint escrow instructions directed
to First American title Insurance Company (Escrow Holder). Seller and Buyer are referred to
below collectively as the "Parties". The Agreement is effective on the date it is fully executed by
the Parties (Effective Date).
RECITALS
A. Seller is the record fee owner of certain real property located at 31249 Indian
Summer Road, Temecula, California, and identified as Riverside County Tax Assessor's Parcel
Number (APN) 957-090-022 ("Property"). The Property is approximately 198,198 square feet in
size and is zoned Very Low Density Residential (VL).
B. The City originally approved that certain Development Agreement between the
City of Temecula and Ashby USA, LLC pursuant to Ordinance No. 02-14. The Development
Agreement was recorded on January 9, 2003 as Document No. 2003-018567 in the Official
Records of the County of Riverside. The Development Agreement was amended pursuant to: (1)
the First Amendment to the Development Agreement Between the City of Temecula and Ashby
USA, LLC, dated February 14, 2006 and recorded on March 7, 2006 in the Official Records of
Riverside County as Document No. 2006-0162268; (2) the Second Amendment to the
Development Agreement Between the City of Temecula and Ashby USA, LLC, dated April 23,
2013 and recorded on July 3, 2013 in the Official Records of Riverside County as Document No.
2013-0324057, and (3) the Third Amendment to the Development Agreement dated March 8,
2016, and recorded on April 20, 2016 in the Official Records of Riverside County as Document
No. 2016-0156276. Developer Woodside 05S, LP, a California limited partnership and
Wingsweep Corporation, a California corporation are the successors to certain of these approved
applications for development and propose to construct the Sommers Bend Project.
C. To facilitate the Sommers Bend Project's orderly development, the Development
Agreement contained a condition of approval requiring Developer to construct certain public
street, drainage and related improvements for the extension of Nicolas Road from Butterfield Stage
Road to the Calle Girasol/Nicolas Road Connection, Project Number LD 19-4050 (Project). The
Developer is required to construct certain street improvements on Nicolas Road within the existing
right of way. The Project will construct certain permanent improvements consisting of rip -rap
slope -erosion protection to protect the street improvements and mitigate flooding. Further, the
Developer was required to acquire certain land for conservation purposes for unavoidable impacts
associated with the Project pursuant to the requirements of state and federal approvals.
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D. The City seeks to acquire on the Property the real property interests described below
for public use, namely public street, drainage, conservation purposes, and all uses necessary or
convenient thereto in connection with the Project:
(i) An approximate 51,003 square foot permanent easement for conservation
purposes, and all uses necessary and convenient thereto in connection with
the Project dedicated by Seller in favor of the City and for the benefit of
Fallbrook Land Conservancy, a California non-profit corporation pursuant
to that certain Irrevocable Offer of Dedication of Conservation Easement
Pursuant to Government Code Section 7050 ("Irrevocable Offer of
Conservation Easement"). The approximate 51,003 square foot permanent
conservation easement area is described more particularly on EXHIBIT B
and depicted on EXHIBIT C to the form of Irrevocable Offer of
Conservation Easement attached as EXHIBIT 1 hereto and incorporated
herein by this reference ("Conservation Easement").
(ii) An approximate 83,324 square foot Temporary Construction Easement with
a term of twelve months and covenant that would authorize the City to
construct certain permanent drainage improvements within portions of the
approximate 83,324 square foot area. The approximate 83,324 square foot
TCE is described more particularly on EXHIBIT A and depicted on
EXHIBIT B to the form of the Grant of the Temporary Construction
Easement and Covenant attached as EXHIBIT 2 hereto and incorporated
herein by this reference ("TCE Agreement and Covenant"). The
approximate 83,324 square foot area described in EXHIBIT A and depicted
on EXHIBIT B to EXHIBIT 2 is referred to below as the "TCE Area".
The approximate 51,003 square foot Conservation Easement and the approximate 83,324
square foot TCE Area are referred to below collectively as the "Subject Property Interests". The
Parties expressly acknowledge that the 51,003 square foot Conservation Easement is located
within the 83,324 square foot TCE Area.
E. The City seeks to acquire the approximate 51,003 square foot Conservation
Easement for conservation easement purposes pursuant to the Irrevocable Offer of Conservation
Easement. The Irrevocable Offer of Dedication of Conservation Easement is made by the Seller
pursuant to Government Code Section 7050 in favor of the City for the benefit of Rivers & Land
Conservancy, a California non-profit corporation. The Conservation Easement is located on the
southern portion of the Property along Nicolas Road. The purpose of the Conservation Easement
is to ensure the area will be managed and preserved in a natural condition, in perpetuity, and to
prevent any use of the easement area that will impair or interfere with the conservation easement.
Pursuant to the terms of the Conservation Easement, said area is and will remain in a natural
condition and intended to be preserved in its natural, scenic, open condition to maintain its
ecological, historical, visual and educational values. Under the Conservation Easement, the
owner's use is limited to uses consistent with open space purposes, including preservation,
restoration, and enhancement of native species and their habitats. The City would consent to the
recordation of the Irrevocable Offer of Dedication at Close of Escrow. The City can accept the
Dedication of the Conservation Easement offered in the Irrevocable Offer of Dedication in the
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manner provided in Government Code Section 7050. Pursuant to Government Code Section 7050,
the City may accept the Irrevocable Offer at any time by adoption of a Resolution by the City
Council accepting the dedication of the Conservation Easement (the "Resolution of Acceptance").
The Conservation Easement shall become effective upon the adoption of the Resolution of
Acceptance and shall remain in perpetuity unless and until it is terminated by vacation thereof in
accordance with applicable law. The Resolution of Acceptance will authorize the City to execute
a Certificate of Acceptance in substantially the form attached hereto as EXHIBIT D to the
Irrevocable Offer of Conservation Easement. The City has informed Seller that it intends to
consider the Resolution of Acceptance after the construction of the Project and that it intends to
transfer or assign all of its rights in the Conservation Easement to Rivers & Land Conservancy, a
California non-profit corporation after the construction of the Project. The Irrevocable Offer of
Dedication expressly acknowledges the City's rights to assign or transfer its interest in the
Conservation Easement to Rivers & Land Conservancy, a California non-profit corporation.
F. The City seeks to acquire the approximate 83,324 square foot TCE Area to facilitate
the construction of the Project. The TCE Agreement and Covenant would authorize the City to
use the 83,324 square foot TCE Area for a twelve-month period to facilitate the construction of
the Project, including construction staging purposes and storage of equipment and material in
connection with the construction of the Project. Further, because the approximate 83,324 square
foot TCE Area is located on portions of the Property within the Long Valley Wash, a natural flood
control charnel, the TCE Agreement and Covenant would also authorize the City to construct in
the portions of the TCE Area certain permanent improvements consisting of rip -rap and slope -
erosion protection in the portions of the TCE Area shown on EXHIBIT C to EXHIBIT 2. These
permanent rip -rap and slope -erosion protection improvements are necessary to protect the street
improvements that will be constructed within the existing right of way and to mitigate flooding in
this area of the Property.
G. In accordance with Government Code Section 7267.2, the City extended to Seller
a written offer dated September 20, 2022 to purchase the Subject Property Interests for a public
use; namely for public street, drainage, and related improvements and for conservation purposes
in connection with the Project. The Parties negotiated in good faith and have reached an agreement
regarding the City's purchase of the Conservation Easement and use of the TCE Area pursuant to
the terms of the TCE Agreement and Covenant, subject to ratification by the City Council.
H. The parties acknowledge that the City is authorized to acquire real property by
eminent domain for a public use, including conservation purposes, public street, drainage
purposes, and all uses necessary or convenient thereto, pursuant to the authority conferred upon
the City of Temecula by Section 19 of Article I of the California Constitution, Government Code
Sections 6950 et seq., 37350, 37350.5, 37351, 40404, 51097, and 66462.5, California Code of
Civil Procedure Section 1230.010 et seq. (Eminent Domain Law), including but not limited to
Sections 1240.010, 1240.020, 1240.110, 1240.120, 1240.240, 1240.510, 1240.610, 1240.650 and
by other provisions of law. Code of Civil Procedure, Section 1240.010 provides that "[t]he power
of eminent domain may be exercised to acquire property only for a public use. Where the
Legislature provides by statute that a use, purpose, object, or function is one for which the power
of eminent domain may be exercised, such action is deemed to be a declaration by the Legislature
that such use, purpose, object, or function is a public use." Government Code Section 66462.5(c)
authorizes the City and the developer of a project for which the construction of offsite
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improvements are required to enter into an agreement requiring the developer to complete the
improvements pursuant to Government Code Section 66462 at such time as the City acquires an
interest in the land that will permit such improvements to be constructed. Government Code
Section 66462.5(a) provides that a city or county may "acquire by negotiation or commence
eminent domain proceedings pursuant to Title 7 (commencing with Section 1230.010) of Part 3 of
the Code of Civil Procedure to acquire an interest in the land which will permit the improvements
to be made, including proceedings for immediate possession of the property under Article
(commencing with Section 1255.410) of Chapter 6 of that title." If Seller and the City had not
reached an agreement for the City's purchase of the TCE, City staff would have recommended to
the City Council that it consider the adoption of a resolution of necessity authorizing the initiation
of eminent domain proceedings to acquire the TCE in accordance with the Eminent Domain Law.
The City Council however has the exclusive and sole discretion to make the findings required by
Code of Civil Procedure section 1240.030 for the adoption of a resolution of necessity pursuant to
the Eminent Domain Law. (Code of Civil Procedure Section 1245.220). This Agreement is not a
commitment or an announcement of intent to acquire any other real property interests that the City
may need for the Project. Seller is solely responsible for consulting its tax advisors or seeking a
letter ruling from the Internal Revenue Service regarding the applicability of 26 U.S.C. Section
1033 to Seller's sale of the TCE to the City in connection with the Project. The City makes no
express or implied representation regarding the applicability of 26 U.S.C. Section 1033 to this
transaction.
I. Seller desires to sell, and Buyer desires to buy, the Subject Property Interests on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated
herein by this reference, and for other valuable consideration, the receipt of which is hereby
acknowledged, Buyer and Seller agree to the following:
l . Purchase and Sale. On the Close of Escrow, as defined in Section 2 below, Seller
agrees to sell to City and City agrees to purchase from Seller the approximate 51,003 Conservation
Easement described in EXHIBIT B and depicted on EXHIBIT C to the Irrevocable Offer of
Dedication of Conservation Easement attached as EXHIBIT 1 hereto, subject to the terms set forth
therein. Seller also agrees to authorize the City to use the approximate 83,324 square foot TCE
Area described in EXHIBIT A and depicted on EXHIBIT B to the TCE Agreement and Covenant
attached as EXHIBIT 2 hereto, and to authorize the City to install the permanent improvements in
the TCE Area roughly shown in EXHIBIT C to EXHIBIT 2, subject to the terms and conditions
of the TCE Agreement and Covenant.
2. Opening and Close of Escrow. Within five (5) business days after the Effective
Date, City will deliver a copy of the fully -executed Agreement to Escrow Holder. Opening of
Escrow means the date on which Escrow Holder receives a copy of the fully -executed Agreement.
The Parties can execute the Agreement in counterparts as set forth in Section 17.d. below. This
Agreement shall serve as the instructions to Escrow Holder for consummation of the transactions
contemplated hereby. City and Seller agree to execute such additional and supplementary escrow
instructions as may be appropriate to enable Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the terms and provisions
of this Agreement and the terms and provisions of any supplementary escrow instructions, the
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terms and provisions of this Agreement shall control. For the purposes of this Agreement, "Close
of Escrow" shall be the date on which the Irrevocable Offer of Dedication and Grant of Temporary
Construction Easement and Covenant in favor of City are recorded in the Official Records of the
County of Riverside. Provided that all of Seller's and City's obligations to be performed on or
before Close of Escrow have been performed and all the conditions to the Close of Escrow set
forth in this Agreement have been satisfied, escrow shall close thirty (30) calendar days after the
Opening of Escrow ("Closing Date").
3. Purchase Price. The total purchase price that City will pay to Seller for the Subject
Property Interests is the sum of $170,500.00 (One Hundred Seventy Thousand Five Hundred
Dollars and no/100) ("Purchase Price") for the fair market values of the Conservation Easement
and TCE Area and authorization to use the TCE Area for the construction of certain rip -rap and
slope -erosion protection improvements as provided in the TCE Agreement and Covenant. No
attempt has been made to assign value to the lesser interest in the Subject Property Interests. Thus,
the Purchase Price is the total price for the Subject Property Interests without distinction or
separation for various interests that may be held in the Subject Property Interests. Seller is
responsible for any apportionment or allocation of the Purchase Price if required for any separately
held interests that may exist in the Subject Property Interests.
4. Title and Title Insurance.
a. Title Insurance. Upon the Opening of Escrow, Escrow Holder will obtain
and issue title commitments for the Conservation Easement. Escrow Holder will also request two
copies each of all instruments identified as exceptions on said title commitments. Upon receipt of
the foregoing, Escrow Holder will deliver these instruments and title commitments to City and
Seller. Escrow Holder will insure City's easement interest in the Conservation Easement described
in EXHIBIT A and EXHIBIT B to the form of Irrevocable Offer of Dedication (EXHIBIT 1 hereto)
at the Close of Escrow by a CLTA Standard Coverage Policy of Title Insurance (or an ALTA
Extended Coverage Form of Title Policy ("Alta Extended Policy") if the City elects such coverage
as provided below in Section 4.b., in the amount of the Purchase Price ("Title Policy"), with
liability in the full amount of the Purchase Price, insuring the City's easement interest in the
Conservation Easement free and clear of all monetary liens and encumbrances and other matters
affecting title to the Conservation Easement, except for the permitted title exceptions defined
below and any permitted conditions of title that the City approves in writing (collectively
"Permitted Title Exceptions"):
i. General and special real property taxes and assessments for the then
current tax fiscal year which are a lien not then due and payable;
ii. The applicable zoning, building, and development regulations of
any municipality, county, state, or federal jurisdiction affecting the Conservation Easement;
iii. Such other non -monetary exceptions listed in the Preliminary Title
Report that City has approved within ten (10) business days after the date the City receives the
title commitments and legible copies of instruments noted as exceptions therein. If City
conditionally disapproves any exceptions, then Seller will use good faith efforts to seek to cause
such exceptions to be removed by the Close of Escrow. In no event will Seller be required to file
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any legal action to seek to remove any exception conditionally disapproved by the City. If such
conditionally disapproved non -monetary exceptions are not removed by the Close of Escrow, the
City may, at the City's option, either consent to the recordation of the Irrevocable Offer of
Dedication of Conservation Easement attached as EXHIBIT 1 hereto, subject to such
encumbrances, or terminate the Escrow. In the event Escrow is terminated, within ten (10)
business days of the written notice of termination to Escrow, Escrow will disburse the City any
funds deposited into Escrow by City less any escrow cancellation charges.
b. Option to Obtain ALTA Extended Policy. The City will have the option of
obtaining an ALTA Extended Policy or a CLTA Standard Coverage Policy of Title Insurance. If
the City, in its sole discretion, determines to obtain an ALTA Extended Policy, the City will, at its
expense, procure an ALTA survey. The City will also pay for the cost of any such ALTA Extended
Policy.
C. Acts After Date of Agreement. During the period from the date of this
Agreement through the Close of Escrow, Seller shall not encumber the Subject Property Interests,
record or permit to be recorded any document or instrument relating to the Subject Property
Interests, or physically alter the Subject Property Interests or permit or cause to be altered without
the prior written consent of City, which consent may be withheld in City's sole and absolute
discretion.
5. Escrow.
a. Deposit of Funds in Escrow. City covenants and agrees to deposit with
Escrow Holder the Purchase Price and any such escrow funds as are required for Close of Escrow
within five (5) business days of receiving written notice from Escrow holder regarding the
confirmation of the completion of the conditions required herein for the Close of Escrow.
b. Deposit of Documents in Escrow b Ste. Seller covenants and agrees to
deposit with Escrow Holder the following documents within ten (10) business days of the Opening
of Escrow:
i. Irrevocable Offer of Dedication of Conservation Easement. The
Irrevocable Offer of Dedication of Conservation Easement in the form attached as EXHIBIT 1
hereto ("Irrevocable Offer of Dedication") duly executed and acknowledged by Seller. EXHIBIT
1 is attached hereto and incorporated herein by this reference.
ii. Grant of Temporary Construction Easement and Covenant. The
Grant of Temporary Construction Easement and Covenant in the form attached as EXHIBIT 2
hereto ("TCE Agreement and Covenant") duly executed and acknowledged by Seller. EXHIBIT
2 is attached hereto and incorporated herein by this reference.
iii. A California 593 certificate and federal non -foreign
affidavit.
iv. Any other documents reasonably required by Escrow Holder
or the Title Company to be deposited by Seller to carry out this escrow.
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C. Deposit of Documents in Escrow by City.
Consent to Recordation. The Consent to Recordation attached to
the Irrevocable Offer of Dedication (attached hereto as EXHIBIT 1).
ii. Certificate of Acceptance. The executed TCE Agreement and
Covenant in the form attached as EXHIBIT 2 hereto.
iii. Any other documents reasonably required by Escrow Holder to be
deposited by Buyer to carry out this escrow.
d. Recordation of Irrevocable Offer of Dedication of Conservation Easement
and TCE Agreement and Covenant; Delivery of Funds and Possession. Upon receipt of the funds
and instruments described in Section 5, Escrow Holder shall cause the Irrevocable Offer of
Conservation Easement and TCE Agreement and Covenant to be recorded in the Official Records
of the County of Riverside. Thereafter, Escrow Holder shall deliver the proceeds of this escrow
(less appropriate charges as shown on a preliminary Settlement Statement executed by City and
Seller) to Seller, and Seller shall deliver possession of the Subject Property Interests to City free
and clear of all occupants.
e. Prorations. Real property taxes for the Subject Property Interests shall not
be prorated, but must be paid by Seller for the current tax period. Seller may apply for a refund of
property taxes in the event any property taxes paid are allocable to the period after the Close of
Escrow and City shall reasonably cooperate therewith. City, as a municipal corporation acquiring
property for the Project, is exempt from property taxes pursuant to Revenue and Taxation Code
Section 11922, and other provisions of law. All property assessments shall be prorated between
Buyer and Seller as of the Close of Escrow based on the latest available tax information. All
prorations for such assessments shall be determined on the basis of a 365-day year. Escrow Holder
is authorized to pay from the Purchase Price any unpaid delinquent taxes and/or penalties and
interest thereon, and for any delinquent or non -delinquent assessments or bonds recorded against
the Subject Property Interests.
f. Costs of Escrow. City will pay for the cost of the Title Policy (or ALTA
Extended Policy if City elects to obtain such extended coverage). City will also pay for escrow
fees and Escrow Holder's customary out-of-pocket expenses for messenger services, long distance
telephone calls, etc. City will pay for recording the Irrevocable Offer of Conservation Easement
and TCE Agreement and Covenant, and any documentary or other local transfer taxes, if any, and
for any recording costs (if any). City will also pay for the costs of an ALTA survey if it determines
to obtain an ALTA Extended Policy.
g. Escrow Cancellation Charges. If escrow fails to close through no fault of
either party, City will pay all escrow and title cancellation charges. In the event that this escrow
shall fail to close by reason of the default of either party hereunder, the defaulting party shall be
liable for all escrow and title cancellation charges.
6. Conditions to the Close of Escrow. Escrow shall not close unless and until both
Parties have deposited with Escrow Holder all sums and documents required to be deposited as
provided in Section 5. Additionally, City's obligation to proceed with the transaction
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contemplated by this Agreement is subject to the satisfaction of all of the following conditions
precedent, which are for City's benefit and may be waived only by City:
a. Seller shall have performed all obligations to be performed by Seller
hereunder.
b. If any of the conditions to Close of Escrow are not timely satisfied for a
reason other than a default of City or Seller under this Agreement, and this Agreement is
terminated, then upon termination of this Agreement, Escrow Holder will promptly return to City
all funds (and all interest accrued thereon, if any) and documents deposited by City in escrow and
return to Seller the documents deposited by Seller in escrow that are held by Escrow Holder on
the date of the termination (less any escrow cancellation charges).
7. Representation and Warranties of Seller. Seller hereby represents and warrants
to City the following, it being expressly understood and agreed that all such representations and
warranties are to be true and correct as of the Close of Escrow and will survive the Close of Escrow:
a. That to the best of Seller's knowledge on the Close of Escrow (i) the TCE
Area will be free and clear of Hazardous Materials (defined in Section 12.a. below) or toxic
substances and waste, including, but not limited to, asbestos, and (ii) Seller has no notice of any
pending or threatened action or proceeding arising out of the condition of the TCE Area or alleged
violation of Environmental Laws (defined in Section 12.b. below), health or safety statutes,
ordinance, or regulations.
b. That Seller is the record fee owner of the Property and no other party has a
fee interest in the Subject Property Interests. Seller will not further encumber the Subject Property
Interests to be further encumbered prior to the Close of Escrow.
C. Neither this Agreement nor anything provided to be done hereunder,
including the Irrevocable Offer of Dedication of Easement and TCE Agreement and Covenant to
City, violates or will violate any contract, agreement, or instrument to which Seller is a party, or
which affects the Conservation Easement described in the Irrevocable Offer of Dedication or TCE
Area, and the Seller's grant to City of the Subject Property Interests pursuant to this Agreement
does not require the consent of any party not a signatory hereto.
d. There are no claims or liens presently claimed or that will be claimed against
the Subject Property Interests by contractors, subcontractors, or suppliers, engineers, architects,
surveyors or others that may have lien rights for work performed or commenced prior to the
Effective Date. Seller agrees to hold City harmless from all costs, expenses, liabilities, losses,
charges, fees, including reasonable attorneys' fees, arising from or relating to any such lien or any
similar lien claimed against the Subject Property Interests and arising from work performed or
commenced prior to the Close of Escrow.
e. There are no written or oral leases or contractual rights or options to lease,
purchase, or otherwise enjoy possession, rights, or interest of any nature in and to the Subject
Property Interests, or any part thereof, and no persons have any right of possession to the Subject
Property Interests, or any part thereof. Seller agrees to hold City harmless from all costs, expenses,
liabilities, losses, charges, fees, including attorneys' fees, arising from or relating to any claims by
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any person or entity claiming rights to possession of any portion of the Subject Property Interests.
8. Representations and Warranties of City. City hereby represents and warrants to
Seller the following, it being expressly understood and agreed that all such representations and
warranties are to be true and correct as of the Close of Escrow and will survive the Close of Escrow:
a. City has taken all required action to permit it to execute, deliver, and
perform its obligations under this Agreement.
b. City has the power and authority to execute and deliver this Agreement and
carry out its obligations hereunder and consummate the transaction contemplated herein.
9. Total Consideration.
a. The Parties agree that City's payment to Seller of the Purchase Price set
forth in this Agreement is an all-inclusive settlement and is the full and complete consideration
and payment of just compensation for the fair market value of and rights to the Conservation
Easement described in the Irrevocable Offer of Dedication of Conservation Easement and rights
to use the TCE Area to facilitate the construction of the Project under the terms of the TCE
Agreement and Covenant, including the authorization to install the permanent improvements
consisting of rip -rap slope -erosion protection improvements in the location of the TCE Area shown
on EXHIBIT C to EXHIBIT 2 hereto, severance damages, inverse condemnation,
precondemnation damages, attorneys' fees, interest, appraisal costs, loss of rents, lost profits, any
future maintenance costs of Seller relating to maintaining the rip -rap and related drainage and
slope -erosion improvements, any obligations of Seller under the Conservation Easement, any other
damages of every kind and nature suffered by Seller by reason of City's acquisition of the Subject
Property Interests, the Project for which City is acquiring the Subject Property Interests, and all
costs and expenses whatever in connection therewith.
b. Business Goodwill and Relocation Assistance.
(i) No Loss of Business Goodwill. Seller agrees and acknowledges that
Seller will not suffer any loss of business goodwill under Code of Civil Procedure Section
1263.510 as a result of City's acquisition of the Subject Property Interests or the construction of
the Project. There is no business operating on the Property. Under Code of Civil Procedure
Section 1263.510, the owner of a business conducted on the property taken, or on the remainder if
the property is part of a larger parcel, will be compensated for loss of goodwill if the owner proves
that (i) the loss is caused by City's acquisition of the property or the injury to the remainder; (ii)
the loss cannot reasonably be prevented by a relocation of the business or by taking steps and
adopting procedures that a reasonably prudent person would take and adopt in preserving the
goodwill; (iii) compensation for the loss will not be included in payments under Government Code
Section 7262; and (iv) compensation for the loss will not be duplicated in the compensation
otherwise awarded to the owner.
(ii) No Relocation Assistance. City is acquiring the authorization to use
the approximate 83,324 square foot TCE Area to facilitate the construction of the Project and to
install certain rip -rap and slope -erosion protection improvements on the portions of the TCE Area
shown roughly on EXHIBIT C to EXHIBIT 2 pursuant to the terms of the TCE Agreement and
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Covenant. The City's use of the TCE Area and installation of permanent rip -rap slope erosion
protection improvements in accordance with the terms of the TCE Agreement and Covenant will
not result in the displacement of any person or business from the Property. Accordingly, no
relocation assistance and benefits pursuant to applicable federal or state relocation laws or
regulations, including without limitation, the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. Section 4601 et seq.), if applicable, or under Title 1,
Division 7, Chapter 1 of the Government Code of the State of California (Section 7260 et seq.), or
the Relocation Assistance and Real Property Acquisition Guidelines (Chapter 6 of Title 25 of the
California Code of Regulations) are triggered as a result of City's use of the TCE Area under the
terms of the TCE Agreement and Covenant in connection with the Project.
10. Releases.
a. This Agreement is a voluntary agreement and Seller on the Close of Escrow,
on behalf of Seller, Seller's successors and assigns, fully releases City, its Councilmembers,
officers, counsel, employees, representatives and agents, from all claims and causes of action by
reason of any damage that has been sustained, or may be sustained, as a result of City's efforts to
acquire the Subject Property Interests, or any preliminary steps thereto. Seller further releases and
agrees to hold City harmless from any and all claims and causes of action asserted by any party
claiming to have rights to possession of any portion of the Subject Property Interests.
b. California Civil Code Section 1542. Seller acknowledges that it may have
sustained damage, loss, costs or expenses that are presently unknown and unsuspected, and such
damage, loss, costs or expenses that may have been sustained, may give rise to additional damages,
loss, costs or expenses in the future. Nevertheless, Seller hereby acknowledges that this
Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly
waives any and all rights that Seller may have under California Civil Code Section 1542 as it
relates to the releases set forth in this Section 10, or under any statute or common law or equitable
principle of similar effect. California Civil Code Section 1542 provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
Seller's Initials:
City's Initials:
Seller's waiver of rights and release of claims set forth above in Section 10.a. and Section
10.b. will not extend to and is not intended to extend to claims related to or alleged to arise out of
negligence on the part of City, its agents or contractors, in connection with the physical
construction of the Project.
This Section 10 will survive the Close of Escrow.
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11. City's Contingencies. For the benefit of City, the Close of Escrow and City's
obligation to consummate the purchase of the Subject Property Interests is contingent upon and
subject to the occurrence of all of the following (or City's written waiver thereof, it being agreed
that City can waive any or all such contingencies) on or before the Close of Escrow:
a. That as of the Close of Escrow the representations and warranties of Seller
contained in this Agreement are all true and correct;
b. The delivery to Escrow Holder of all documents pursuant to Section 5 of
this Agreement;
C. Escrow Holder's commitment to issue, in favor of City, the Title Policy
with liability equal to the Purchase Price showing City's interest in the Conservation Easement
Area, subject only to the Permitted Title Exceptions; and
d. City's approval prior to the Close of Escrow of any due diligence testing,
environmental site assessment, soils or geological reports, or other physical inspections of the
Subject Property Interests that City might perform prior to the Close of Escrow.
12. Certain Definitions.
a. The term "Hazardous Materials" will mean and include the following,
including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product
or constituent regulated under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq.; oil and petroleum products and natural gas, natural
gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides regulated under the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; asbestos and
asbestos -containing materials, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq.; source material, special nuclear material, by-product
material and any other radioactive materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the
OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.; industrial process
and pollution control wastes, whether or not hazardous within the meaning of the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; any substance defined as a
"hazardous substance" in California Civil Code Section 2929.5(e)(2) or California Code of Civil
Procedure Section 736(f)(3); and any other substance or material regulated by any Environmental
Laws.
b. The term `Environmental Laws" will mean and include all federal, state and
local statutes, ordinances, regulations and rules in effect on or prior to the Effective Date relating
to environmental quality, health, safety, contamination and clean-up, including, without limitation,
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251
et seq.; and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide
Act 7 U.S.C. Section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C.
Section 1401 et seq.; the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the
Noise Control Act, 42 U.S.C. Section 4901 et seq.; the Occupational Safety and Health Act, 29
U.S.C. Section 651 et seq.; the Resource Conservation and Recovery Act 42 U.S.C. Section 6901
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et seq.; as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act 42 U.S.C. Section 9601 et seq. as amended by the Superfund
Amendments and Reauthorization Act, the Emergency Planning and Community Right -to -Know
Act and the Radon Gas and Indoor Air Quality Research Act; the Toxic Substances Control Act
15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq.; and the
Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and state and local
environmental statutes and ordinances, with implementing regulations and rules in effect on or
prior to the Effective Date.
13. Evidence in Court Proceeding. The Parties agree that the total Purchase Price of
$170,500.00 or any inference of per square foot value of the approximate 83,324 square foot
Conservation Easement or 51,003 square foot Temporary Construction Easement on said Purchase
Price will not be admissible as evidence of the fair market value of the Subject Property Interests
in an eminent domain or other proceeding or litigation concerning the Subject Property Interests,
or any portion thereof.
14. Default. In the event of a breach or default under this Agreement by either City or
Seller, the non -defaulting party will have, in addition to all rights available at law or equity, the
right to terminate this Agreement and the Escrow for the purchase and sale of the Subject Property
Interests by delivering written notice thereof to the defaulting party and to Escrow Holder, and if
City is the non -defaulting party, City will thereupon promptly receive a refund of all of the deposits
it deposited with Escrow Holder, if any, less City's share of any escrow cancellation charges. Such
termination of the escrow by a non -defaulting party will be without prejudice to the non -defaulting
party's rights and remedies at law or equity.
15. Notices. All notices and demands will be given in writing by personal delivery,
certified mail, postage prepaid, and return receipt requested, or by Federal Express or other
overnight carrier. Notices will be considered given upon the earlier of (a) personal delivery, (b)
two (2) business days following deposit in the United States mail, postage prepaid, certified or
registered, return receipt requested, or (c) one (1) business day following deposit with Federal
Express or other overnight carrier. A copy of all notices will be sent to Escrow Holder. The Parties
will address such notices as provided below or as may be amended by written notice:
BUYER: City of Temecula
41000 Main Street
Temecula, California 92590
Attention: Aaron Adams, City Manager
COPY TO: Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Attention: Peter M. Thorson, City Attorney
SELLER: Lam Ngo and Huyen Lam Tran
13341 Wilson Street
Garden Grove, California 92844
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ESCROW
HOLDER: First American Title Insurance Company
One Ridgegate Drive, Suite 225
Temecula, California 92590
Attention: Debbie Fritz, Escrow Officer
Electronic Mail: dfritz(afirstam.com
16. Broker Commissions. No brokers represented the Parties in connection with this
transaction. Seller will be solely responsible for the payment of any and all broker's commissions
or similar compensation due to any broker representing Seller, if any, and Seller will defend,
indemnify and hold the City harmless from and against any and all claims for any broker's
commissions or similar compensation that may be payable to any broker claiming it represented
Seller in connection with this transaction. Each party will defend, indemnify and hold harmless
the other party from and against all claims of any agent, broker, finder or other similar party based
upon such party's own acts in connection with this transaction. The provisions of this Section 16
will survive the Close of Escrow.
17. Miscellaneous.
a. Amendments. Any amendments to this Agreement will be effective only
when duly executed by both City and Seller and deposited with Escrow Holder.
b. Entire Agreement. This Agreement contains all of the agreements of the
Parties hereto with respect to the matters contained herein, and all prior or contemporaneous
agreements or understandings, oral or written, pertaining to any such matters are merged herein
and shall not be effective for any purpose.
C. Counterparts, Facsimile, and Electronic Signatures. This Agreement may
be executed in any number of counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument. Facsimile or electronic
signatures/counterparts to this Agreement will be effective as if the original signed counterpart
were delivered.
d. Time of the Essence. Time is of the essence of this Agreement.
e. Governing Law. This Agreement is deemed to have been prepared by each
of the Parties hereto, and any uncertainty or ambiguity herein will not be interpreted against the
drafter, but rather, if such uncertainty or ambiguity exists, will be interpreted according to the
applicable rules of interpretation of contracts under the laws of the State of California, and not the
substantive law of another state or the United States or federal common law. This Agreement will
be deemed to have been executed and delivered within the State of California, and the rights and
obligations of the Parties will be governed by, and construed and enforced in accordance with, the
laws of the State of California.
f. Third Parties. Nothing contained in this Agreement, expressed or implied,
is intended to confer upon any person, other than the Parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
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g. Additional Documents. Each party hereto agrees to perform any further
acts and to execute, acknowledge, and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
h. Authori . of City Manager. The City Manager may give any and all notices,
consents, and terminations hereunder on behalf of the City provided they are in writing. The City
Manager may execute the Agreement, Consent to Recordation, Certificate of Acceptance, TCE
Agreement and Covenant, escrow documents, and any such documents or instruments that are
necessary to effect the transfer of property interests contemplated herein.
i. Interpretation and Construction. Each of the Parties has reviewed the
Agreement and each has had the opportunity to have its respective counsel and real estate advisors
review and revise this Agreement and any rule of construction to the effect that ambiguities are to
be resolved against the drafting party will not apply in the interpretation of this Agreement or any
amendments or exhibits thereto. The recitals and captions of the Sections and Subsections of this
Agreement are for convenience and reference only, and the words contained therein will in no way
be held to explain, modify, amplify or aid in the interpretation, construction, or meaning of the
provisions of this Agreement.
j. Remedies Not Exclusive and Waivers. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other remedy and each
and every remedy will be cumulative and will be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one
or more remedies will not constitute a waiver of the right to pursue other available remedies.
k. Severability. If any part, term or provision of this Agreement is held by a
court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining
provisions will not be affected, and the rights and obligations of the Parties will be construed and
enforced as if this Agreement did not contain the particular part, term, or provision held to be
invalid.
1. Exhibits. The Exhibits attached hereto are incorporated in this Agreement
by this reference.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
set forth below.
Dated:
Dated:
Dated:
SELLER
Lam Ngo and Huyen Lam Tran
By:
Lam Ngo
By:
Huyen Lam Tran
BUYER
City of Temecula, a municipal corporation
Aaron Adams, City Manager
ATTEST:
RA
Randi Johl, City Clerk
APPROVED AS TO FORM:
1-2
Peter M. Thorson, City Attorney
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EXHIBIT 1
FORM OF IRREVOCABLE OFFER OF DEDICATION OF
EASEMENT PURSUANT TO GOVERNMENT CODE SECTION 7050
(CONSERVATION EASEMENT)
Recording requested by and when recorded
return to:
City of Temecula, a municipal corporation
41000 Main Street
Temecula, California 92590
Attention: City Clerk's Office
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN 957-090-022 [X] Portions
Documentary Transfer Tax $0.00
This Instrument is for the benefit of the City of Temecula and is exempt from Recording Fees (Govt. Code § 27383),
Filing Fees (Govt. Code § 6103), and Documentary Transfer Tax (Rev & Tax Code § 11922)
IRREVOCABLE OFFER OF DEDICATION OF EASEMENT PURSUANT TO
GOVERNMENT CODE SECTION 7050 (CONSERVATION EASEMENT)
This IRREVOCABLE OFFER OF DEDICATION OF EASEMENT PURSUANT TO
GOVERNMENT CODE SECTION 7050 (CONSERVATION EASEMENT) ("Irrevocable
Offer") is entered into by Lam Ngo and Huyen Lam Tran, husband and wife as joint tenants
(collectively "Grantor"),Woodside 05S, LP, a California Limited Partnership and Wingsweep
Corporation, a California corporation (collectively "Developer") for the benefit of the CITY OF
TEMECULA, a municipal corporation ("City"), and the FALLBROOK LAND
CONSERVANCY, a California non-profit corporation ("Grantee") and is effective on the date it
is fully executed. The Irrevocable Offer is made with reference to the following facts:
RECITALS
A. Grantor is the sole owner in fee simple of real property containing 4.55 acres
located at 31249 Indian Summer Road, Temecula, California, and identified as Assessor's Parcel
Number 957-090-022 ("Grantor's Property"). Grantor's Property is a vacant parcel legally
described on EXHIBIT A attached hereto and incorporated by this reference.
B. Grantor desires to irrevocably offer to dedicate to the City for the benefit of Grantee
pursuant to Government Code Section 7050 a Conservation Easement (defined below) over an
approximate 51,003 square feet (1.17 acres) portion of Grantor's Property (the "Easement Area").
The Easement Area is legally described on EXHIBIT B and depicted on EXHIBIT C attached
hereto and incorporated by this reference.
C. The Easement Area provides, among other things, compensatory mitigation for
unavoidable impacts associated with the construction of certain public street, drainage and related
improvements for the extension of Nicolas Road from Butterfield Stage Road to Leifer Road,
including the Calle Girasol/Nicolas Road Connection (Nicolas-Calle Girasol Road and Channel
Improvements Project) ("Project"), pursuant to requirements of the following state and Federal
approvals (collectively, "Agency Approvals"): U.S. Army Corps of Engineers (USACE)
11086.0203/2827954v3
Individual Permit SPL-2018-00635-ERS, Regional Water Quality Control Board (RWQCB)
Water Quality Certification R9-2020-0021, and California Department of Fish and Wildlife
(CDFW) Streambed Alteration Agreement 1600-2017-0211-R6, and to fulfill the Project's
obligation under the California Environmental Quality Act (CEQA).
D. This Irrevocable Offer is designed to satisfy and is granted in partial satisfaction of
the Agency Approvals.
E. Consistent with the terms and conditions of this Irrevocable Offer, the Easement
Area is intended to remain in a Natural Condition as defined herein and to be preserved in its
natural, scenic, open condition to maintain its ecological, historical, visual and educational values
(collectively, "Conservation Values"). The Conservation Values are of importance to the people
of the County of Riverside and the people of the State of California and United States.
F. Grantor wishes to dedicate to the City and the City is authorized to accept the
irrevocable offer of dedication for the Conservation Easement pursuant to this Irrevocable Offer
pursuant to Government Code Section 7050 and the City may accept the irrevocable offer of
dedication for the Conservation Easement by adopting a Resolution of Acceptance confirming said
acceptance and recording a Certificate of Acceptance in the form attached as EXHIBIT D hereto.
G. Grantor expressly acknowledges that the City intends to transfer its interest in the
Conservation Easement to Grantee after the Project is constructed and the obligations of the
Developer under the Agency Approvals and this Irrevocable Offer are completed. Grantor agrees
to any such transfer of the City's rights to Grantee or other tax exempt non-profit organization
qualified under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and qualified
to do business in California which is authorized to hold conservation easements pursuant to Civil
Code Section 815.3 and Government Code Section 65965 and has as its primary purpose the
preservation of land in its natural, scenic, forested or open space condition or use
H. Grantee is authorized to hold conservation easements pursuant to Civil Code
Section 815.3 and Government Code Section 65965. Specifically, Grantee is a tax exempt non-
profit organization qualified under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, and qualified to do business in California which has as its primary purpose the
preservation of land in its natural, scenic, forested or open space condition or use.
I. Developer has agreed to enter into this Irrevocable Offer for the purpose of
undertaking certain obligations identified herein prior to the City's transfer or assignment to
Grantee of its rights under this Irrevocable Offer.
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, Grantor agrees as follows:
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
1. Offer, Term, and Acceptance.
(a) Offer. In consideration of the above recitals and the mutual covenants,
terms, conditions, and restrictions contained herein, Grantor hereby makes an irrevocable offer
11086.0203/2827954v3
("Offer of Dedication for Conservation Easement") pursuant to Government Code Section 7050
to dedicate in favor of the City on behalf of Grantee a permanent conservation easement in
perpetuity over the Easement Area described in EXHIBIT B and depicted on EXHIBIT C of the
nature and character and to the extent hereinafter set forth ("Conservation Easement"). This
Irrevocable Offer shall run with the land and be binding on Grantor's heirs, successors,
administrators, assigns, lessees, and other occupiers or users of the Easement Area or any portion
of it.
(b) Term. The term of the Offer of Dedication for Conservation Easement shall
commence on the date that this Irrevocable Offer is recorded in the Official Records of the County
of Riverside, California ("Official Records"). Pursuant to Government Code Section 7050, the
Offer of Dedication for Conservation Easement shall be irrevocable when this Irrevocable Offer
is recorded in the Official Records and may be accepted at any time by the City Council of the
City. Pursuant to Government Code Section 7050, the Offer of Dedication for Conservation
Easement may be terminated and the right to accept such offer abandoned in the same manner as
is prescribed for the summary vacation of streets or highways by Part 3 (commencing with
Section 8300) of Division 9 of the Streets and Highways Code. Such termination and
abandonment may be by the City Council of the City.
(c) Acceptance. Pursuant to Government Code Section 7050, the City may
accept the Offer of Dedication for Conservation Easement at any time for the benefit of Grantee
by adoption of a resolution by the City Council of the City accepting the Offer of Dedication for
Conservation Easement (the "Resolution of Acceptance"). The Conservation Easement shall
become effective upon the adoption of the Resolution of Acceptance and shall remain in perpetuity
unless and until it is terminated by Grantee by vacation thereof in accordance with applicable law.
The Resolution of Acceptance will authorize the City to execute a Certificate of Acceptance in
substantially the form attached hereto as EXHIBIT D, which is incorporated herein by this
reference, accepting the Offer of Dedication for Conservation Easement (the "Acceptance"), and
Grantor authorizes the City to record the Acceptance in the Official Records. Grantor also
authorizes the City to record any such documents as are reasonably necessary to effectuate the
transfer to Grantee of the City's rights in the Conservation Easement set forth in this Irrevocable
Offer without any further action or authorization required from Grantor.
(d) Execution of Irrevocable Offer by Developer. Grantor and Developer agree
that by Developer executing this Irrevocable Offer, Developer agrees that it will complete certain
obligations in connection with the Conservation Easement required for the City's transfer and
assignment to Grantee of its rights under this Irrevocable Offer.
2. Purpose.
(a) The purposes of the Conservation Easement are to (i) ensure the Easement
Area will be managed and preserved in a Natural Condition, as defined herein, in perpetuity and
(ii) prevent any use of the Easement Area that will impair or interfere with the Conservation Values
of the Easement Area (collectively, the "Purpose"). Grantor intends that the Conservation
Easement will confine the use of the Easement Area to such activities that are consistent with the
Purpose, including without limitation, those involving the preservation, restoration, and
enhancement of native species and their habitats.
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(b) The term "Natural Condition", as referenced in the preceding paragraph and
other portions of this Irrevocable Offer, shall mean the condition of the Easement Area, as it exists
at the time the Conservation Easement as set forth in this Irrevocable Offer is transferred to
Grantee, as well as future enhancements or changes to the Easement Area that occur directly as a
result of the following activities:
(i) Compensatory mitigation measures, including implementation,
maintenance, and monitoring activities (collectively, "Compensatory Mitigation") required by the
Agency Approvals and as described in the Nicolas-Calle Girasol and Channel Improvements
Project Habitat Mitigation and Monitoring Plan dated August 21, 2019 and prepared by HELIX
Environmental Planning ("Mitigation Plan"), a copy of which is on file in the City of Temecula
Public Works Department and is incorporated herein by this reference. A copy of the cover page
of the Mitigation Plan is attached as Exhibit E hereto. Grantor expressly acknowledges that the
City has provided a copy of the Mitigation Plan to Grantor. Grantor, Developer, and the City
acknowledge and agree that the Mitigation Plan may need to be updated during the construction
of the Project to reflect updated Agency Approvals and that the updated Mitigation Plan will apply
to the Conservation Easement. The City agrees to provide copies of any such updates to Grantor
prior to transferring its interest in the Conservation Easement as set forth in this Irrevocable Offer
to Grantee and that a copy of any such updated Mitigation Plan will be kept on file in the City of
Temecula Public Works Department.
(ii) In -perpetuity maintenance ("Long -Term Maintenance") as
described in Section 15 herein; or
(iii) Activities described in Sections 3, 4 and 6 through 9 herein.
(c) Grantor represents and warrants that there are no structures or
improvements existing on the Easement Area at the time this Irrevocable Offer is executed.
Grantor further represents and warrants that there are no other previously granted easements
existing on the Easement Area that interfere or conflict with the Purpose of the Conservation
Easement as evidenced by the Title Report attached at EXHIBIT F hereto. The present Natural
Condition of the Easement Area is evidenced in part by the depiction of the Easement Area
attached on EXHIBIT G, showing all relevant and plottable property lines, easements, dedications,
improvements, boundaries and major, distinct natural features such as waters of the United States.
Developer has delivered further to the City evidence of the present Natural Condition to Grantee
consisting of (1) a color aerial photograph of the Easement Area at an appropriate scale taken as
close in time as possible to the date this Irrevocable Offer is executed; (2) an overlay of the
Easement Area boundaries on such aerial photograph; and (3) on -site color photographs showing
all man-made improvements or structures (if any) and the major, distinct natural features of the
Easement Area.
(d) If a controversy arises with respect to the present Natural Condition of the
Easement Area, Grantor, Grantee, or Developer or any designees or agents of Grantor, Grantee,
and Developer shall not be prevented from utilizing any and all other relevant documents, surveys,
photographs or other evidence or information to assist in the resolution of the controversy.
11086.0203/2827954v3
(e) The term `Biological Monitor" shall mean an independent third -party
consultant with knowledge of aquatic resources in the Riverside County area and expertise in the
field of biology or related field.
3. Grantee's Rights. To accomplish the Purpose of the Conservation Easement,
Grantor hereby grants and conveys the following rights to Grantee, effective upon the City's
transfer and assignment to Grantee of its rights under this Irrevocable Offer.
(a) To preserve and protect the Conservation Values of the Easement Area;
(b) To enter upon the Easement Area and Grantor's Property in order to monitor
compliance with and to otherwise enforce the terms of this Irrevocable Offer;
(c) To prevent any activity on or use of the Easement Area that is inconsistent
with the Purpose of the Conservation Easement and to require the restoration of such areas or
features of the Easement Area that may be damaged by any act, failure to act, or any use that is
inconsistent with the Purpose of the Conservation Easement;
(d) To require that all mineral, air, and water rights (if any) as Grantee deems
necessary to preserve, protect and sustain the biological resources and Conservation Values of the
Easement Area shall remain a part of and be put to beneficial use upon the Easement Area,
consistent with the Purposes of the Conservation Easement;
(e) The right to enforce by any means, including, without limitation, injunctive
relief, the terms and conditions of this Irrevocable Offer; and
(f) The right to enhance native plant communities, including the removal of
non-native species and the right to plant native trees and shrubs of the same type as currently
existing on the Easement Area, or other appropriate native species. Habitat enhancement activities
shall not conflict with the preservation of the Natural Condition of the Easement Area or the
Purpose of the Conservation Easement and shall be performed in compliance with all applicable
laws, regulations, permitting requirements, and the approved long-term management plan.
4. Developer's Rights. To accomplish the Purpose of the Conservation Easement as
described in Section 2, Grantor hereby grants to Developer the following rights, effective upon the
recordation of this Irrevocable Offer:
(a) The right to enter the Grantor's Property and Easement Area to conduct the
activities required under the Agency Approvals and any amendments thereto, and the Mitigation
Plan, and any updates thereto, to implement the Compensatory Mitigation requirements, including
but not limited to the following activities: (i) remove trash and debris; (ii) excavate and regrade
the surface as appropriate for detention and flow of water for wetlands; (iii) eradicate weeds and
non-native plants; (iv) install and maintain irrigation system; (v) prepare the site for native seeding
and planting, including amending soils; (vi) install native seeds and container plants; and
(vii) maintain, restore and monitor the wetlands and buffer area.
11086.0203/2827954v3
(b) Upon receipt of Final Approval (defined in Section 8, below), Developer's
right to enter the Grantor's Property and Easement Area pursuant to Subsection 4(a), above, shall
cease.
5. Prohibited Uses. Except as provided in Section 9, any activity on or use of the
Easement Area inconsistent with the Purpose of the Conservation Easement is prohibited. Without
limiting the generality of the foregoing, the following uses by Grantor, Grantee, and their
respective guests, agents, assigns, employees, representatives, successors, and third parties are
expressly prohibited on the Easement Area:
(a) Unseasonable or supplemental watering except for habitat enhancement
activities described in Subsection 3(f), Subsection 9(b), or the Mitigation Plan;
(b) Use of chemical fertilizers, pesticides, biocides, herbicides, rodenticides,
fungicides or other agents or weed abatement activities, except weed abatement activities
necessary to control or remove invasive, exotic plant species in accordance with Subsection 9(c)
of this Irrevocable offer or pursuant to the Mitigation Plan;
(c) Incompatible fire protection activities except fire prevention activities set
forth in Section 9;
(d) Use of off -road vehicles and use of any other motorized vehicles except on
existing roadways;
(e) Grazing or other agricultural activity of any kind;
(f) Recreational activities including, but not limited to, horseback riding,
biking, hunting or fishing;
(g) Residential, commercial, retail, institutional, or industrial structures or uses;
(h) Any legal or de facto division, subdivision or partitioning of the Easement
Area, including a request for a certificate of compliance pursuant to the California Subdivision
Map Act (California Government Code Section 66499.35);
(i) Construction, reconstruction, expansion, location, relocation, installation or
placement of any building, road, wireless communication cell towers, or any other structure or
improvement of any kind, or any billboard, fence, boundary marker or sign, except signs permitted
in Subsection 8(b);
0) Dumping soil, trash, ashes, refuse, waste, bio-solids, garbage or any other
material;
(k) Planting, gardening, introducing or dispersing non-native or exotic plant or
animal species;
(1) Filling, dumping, excavating, draining, dredging, mining, drilling,
removing or exploring for or extraction of minerals, loam, gravel, soil, rocks, sands or other
11086.0203/2827954v3
material on or below the surface of the Easement Area, or granting or authorizing surface entry for
any of these purposes;
(m) Altering the surface or general topography of the Easement Area, including
but not limited to any alterations to habitat, building roads or trails, flood control work, or paving
or otherwise covering any portion of the Easement Area; except as permitted by the Agency
Approvals, or as necessary to implement the Mitigation Plan, or any right reserved in Section 9 or
Section 15;
(n) Removing, destroying, or cutting of trees, shrubs or other vegetation, except
for (1) emergency fire breaks as required by fire safety officials as set forth in Section 9(e), (2)
prevention or treatment of disease, (3) control of invasive species which threaten the integrity of
the habitat, (4) completing the Mitigation Plan, or (5) activities described in Sections 6 through 9
or Section 15. In the event that activity on the Easement Area is necessary to prevent or treat
disease as listed herein, the first priority for action shall be chemical and biological methods. No
invasive or non-native species shall be introduced to prevent or treat disease, unless chemical or
biological methods have failed to resolve the problem and the County of Riverside Department of
Environmental Health, or other agency with authority, determines that no other methods will
address the problem. Removal of vegetation to prevent or treat disease shall only be allowed if
chemical or biological methods have failed to resolve the problem or upon a showing that removal
of vegetation is required on an emergency basis;
(o) Manipulating, impounding or altering any natural watercourse, body of
water or water circulation on the Easement Area, and activities or uses detrimental to water quality,
including but not limited to degradation or pollution of any surface or sub -surface waters;
(p) Creating, enhancing, and maintaining fuel modification zones within the
Easement Area (defined as a strip of mowed land or the planting of vegetation possessing low
combustibility for purposes of fire suppression) or other activities that could constitute fuel
modification zones within the Easement Area;
(q) Creation of any encumbrance superior to this Irrevocable Offer, other than
those encumbrances set forth in the Title Report attached as Exhibit F hereto, or the recording of
any involuntary lien (which is not released within sixty (60) calendar days), or the granting of any
lease, license or similar possessory interest in the Easement Area which will affect the
Conservation Values of the Easement Area;
(r) Any and all activities and uses which may adversely affect the Purposes of
the Conservation Easement;
(s) Any use or activity that may violate, or fail to comply with, relevant federal,
state, or local laws, regulations, or policies applicable to Grantor, the Easement Area, or the use or
activity in question; and
(t) No use shall be made of the Easement Area, and no activity thereon shall
be permitted, that may adversely affect the Conservation Values of the Grantor's Property or
otherwise interfere with the Purposes of the Conservation Easement. Grantor and Grantee
acknowledge that, in view of the perpetual nature of the Conservation Easement, they are unable
11086.0203/2827954v3
to foresee all potential future land uses, future technologies, and future evolution of the land and
other natural resources, and other future occurrences affecting the Purpose of the Conservation
Easement. Grantee may determine whether (1) proposed uses or proposed improvements not
contemplated by or addressed in this Irrevocable Offer or (2) alterations in existing uses or
structures, are consistent with the Purpose of the Conservation Easement.
6. Grantor's Duties. Grantor, its successors and assigns shall:
(a) Undertake all reasonable actions to prevent the unlawful entry and trespass
by persons whose activities may degrade or harm the Conservation Values of the Easement Area.
In addition, Grantor shall undertake all necessary actions to perfect Grantee's rights under
Section 3 of this Irrevocable Offer;
(b) Cooperate with Grantee, its successors or assigns in the protection of the
Conservation Values;
(c) Pursuant to Subsection 15(d), below, repair and restore damage to the
Easement Area to the extent directly or indirectly caused by Grantor, Grantor's guests,
representatives, employees or agents, and third parties within Grantor's control; provided,
however, Grantor, its successors or assigns shall not engage in any repair or restoration work in
the Easement Area without first consulting with the Grantee or its successor or assigns; and
(d) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Irrevocable Offer, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes, ordinances,
rules, regulations, orders or requirements.
7. Grantee's Duties. Effective upon the City's transfer and assignment to Grantee of
its rights under this Irrevocable Offer, Grantee shall:
(a) Perform at least quarterly compliance inspections of the Easement Area,
prepare an annual inspection report that documents the quarterly inspection results;
(b) Upon receipt of Final Approval, perform the Long -Term Maintenance of
the Easement Area as described in Section 15;
(c) Pursuant to the requirements of Subsection 15(e), below, repair and restore
damage to the Easement Area directly or indirectly caused by Grantee, Grantee's guests,
representatives, employees or agents, and third parties within Grantee's control;
(d) Set aside, hold, invest and disburse adequate Maintenance and Monitoring
Endowment funds (described in Section 16) in trust solely for the purposes of preserving the
Conservation Values of the Easement Area under this Irrevocable Offer in perpetuity;
(e) Have a fiduciary duty to ensure the Maintenance and Monitoring
Endowment held in trust for the Easement Area is properly managed in accordance with the terms
of the approved endowment agreement; and
11086.0203/2827954v3
(f) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Irrevocable Offer, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes, ordinances,
rules, regulations, orders or requirements.
8. Developer's Duties. Developer shall undertake construction, maintenance and
monitoring of mitigated areas pursuant to the Mitigation Plan until issuance of final approval from
the RWQCB confirming that Developer has successfully completed construction, maintenance and
monitoring of mitigated areas pursuant to the Mitigation Plan ("Final Approval"). This duty is
non -transferable. In addition, Developer shall:
(a) Pursuant to the requirements of Subsection 15(f), below, repair and restore
damage to the Easement Area directly or indirectly caused by Developer, Developer's guests,
representatives, employees or agents, and third parties within Developer's control provided,
however, Developer, its successors or assigns, shall not engage in any repair or restoration work
on the Easement Area without first consulting with Grantor and Grantee; and
(b) Within ninety (90) days of recordation of the Acceptance in the Official
Records, erect signs and other notification features saying "Natural Area Open Space," "Protected
Natural Area," or similar descriptions. Prior to erection of such signage, Developer shall have its
Biological Monitor submit detailed plans showing the location and language of such signs to
Grantee for review. The erection of informative signage shall not be in direct or potential conflict
with the preservation of the Natural Condition of the Easement Area or the Purpose of the
Conservation Easement and shall be performed in compliance with all applicable statutes,
regulations, and permitting requirements; and
(c) Obtain any applicable governmental permits and approvals for any activity
or use permitted by this Irrevocable Offer, and any activity or use shall be undertaken in
accordance with all applicable federal, state, local and administrative agency statutes, ordinances,
rules, regulations, orders or requirements; and
(d) Upon receipt of Final Approval, Developer's duties under this Irrevocable
Offer shall cease and Developer shall have no further obligations whatsoever with respect to the
Easement Area or this Irrevocable Offer.
9. Reserved Rights. Grantor reserves to itself, and to its personal representatives,
heirs, successors, and assigns, all rights accruing from its ownership of the Easement Area,
including the right to engage in or to permit or invite others to engage in all uses of the Easement
Area that are not expressly prohibited or limited by, and are consistent with, the Purpose of the
Conservation Easement, including the following uses:
(a) Access. Reasonable access through the Easement Area and Grantor's
Property to adjacent land over existing roads, or to perform obligations or other activities permitted
by this Irrevocable Offer.
(b) Habitat Enhancement Activities. Creation and enhancement of native plant
communities, including the right to plant native trees and shrubs of the same type as currently
existing on the Easement Area, so long as such activities do not harm the habitat types identified
11086.0203/2827954v3
in the Agency Approvals or Mitigation Plan. For purposes of preventing erosion and reestablishing
native vegetation, Grantor shall have the right to revegetate areas that may be damaged by the
permitted activities under this Section 9, naturally occurring events or by the acts of persons
wrongfully damaging the Natural Condition of the Easement Area. Habitat enhancement activities
shall not be in direct or potential conflict with the preservation of the Natural Condition of the
Easement Area or the Purpose of the Conservation Easement and shall be performed in compliance
with all applicable statutes, regulations, and permitting requirements.
(c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of
vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of
parasitic vegetation (as it relates to the health of the host plant) and removal of non-native or exotic
plant or animal species. Vegetation, debris, and exotic plant species removal shall not be in direct
or potential conflict with the preservation of the Natural Condition of the Easement Area or the
Purpose of the Conservation Easement and shall be performed in compliance with all applicable
laws, regulations, and permitting requirements.
(d) No Interference with Development of Adjoining Property. Notwithstanding
anything set forth herein to the contrary, nothing in this Irrevocable Offer is intended nor shall be
applied to in any way limit Grantor or any of Grantor's successors and assigns from
(1) constructing, placing, installing, and/or erecting any improvements upon the portions of the
Grantor's Property not constituting the Easement Area and/or (2) developing adjoining property
for any purposes, except as limited by any local, state or federal permit requirements for such
development and provided that for all of the above clauses (1) and (2) neither such activity nor any
effect resulting from such activity amounts to a use of the Easement Area, or has an impact upon
the Easement Area, that is prohibited by Section 5 above.
(e) Fire Protection. The right, in an emergency situation only, to maintain
firebreaks (defined as a strip of plowed or cleared land made to check the spread of a fire), trim or
remove brush, otherwise perform preventative measures required by the fire department to protect
structures and other improvements from encroaching fire. All other brush management activities
shall be limited to areas outside the Easement Area.
10. Enforcement.
(a) Right to Enforce. Grantor, its successors and assigns, grant to the State of
California a discretionary right to enforce this Irrevocable Offer in a judicial or administrative
action against any person(s) or other entity(ies) violating or attempting to violate this Irrevocable
Offer; provided, however, that no violation of this Irrevocable Offer shall result in a forfeiture or
reversion of title. The State of California shall have the same rights, remedies and limitations as
Grantee under this Section 10. The rights under this Section are in addition to, and do not limit
rights conferred in Section 3 above, the rights of enforcement against Developer and its successors
or assigns under the Agency Approvals, or any rights of the various documents created thereunder
or referred to therein. The term "Party" or "Parties" as used in this Section 10 means Grantor,
Developer, or Grantee, as the case may be. Grantor, Grantee, Developer and any third party
beneficiaries, including the City, RWQCB, USACE, and CDFW, when implementing any
remedies under this Irrevocable Offer, shall provide timely written notice to each other of any
11086.0203/2827954v3
actions taken under this section, including, but not limited to copies of all notices of violation and
related correspondence.
(b) Notice of Violation. In the event that a Party or its employees, agents,
contractors or invitees is in violation of the terms of this Irrevocable Offer or that a violation is
threatened, the non -violating Party or Parties and/or third parry beneficiaries may demand the cure
of such violation. In such a case, the non -violating Party or Parties and/or third party beneficiaries
shall issue a written notice to the violating Party (hereinafter "Notice of Violation") informing the
violating Parry of the actual or threatened violations and demanding cure of such violations. The
Notice of Violation shall be sent to the other Party and third parry beneficiaries listed under
Section 13 of this Irrevocable Offer.
(c) Time to Cure. The violating Party shall cure the noticed violation within
thirty (30) days of receipt of said written Notice of Violation. If said cure reasonably requires
more than thirty (30) days, the violating Parry shall, within the thirty (30) day period, submit to
the non -violating Party or Parties and/or third party beneficiaries, as the case may be, for review
and approval a plan and time schedule to diligently complete a cure. The violating Party shall
complete such cure in accordance with the approved plan. If the violating Party disputes the notice
of violation, it shall issue a written notice of such dispute (hereinafter "Notice of Dispute") to the
appropriate Party or Parties and/or third party beneficiary within thirty (30) days of receipt of
written Notice of Violation.
(d) Failure to Cure. If the violating Party fails to cure the violation within the
time period(s) described in Section 10(c), above, or Section 10(e)(ii), below, the non -violating
Party or Parties and/or third party beneficiaries may bring an action at law or in equity in a court
of competent jurisdiction to enforce compliance by the violating Party with the terms of this
Irrevocable Offer. In such action, the non -violating Party or Parties and/or third party beneficiaries
may:
(i) Recover any damages to which they may be entitled for violation by
the violating Party of the terms of this Irrevocable Offer or for any injury to the Conservation
Values of the Easement Area. The non -violating Parry or Parties shall first apply any damages
recovered to the cost of undertaking any corrective action on the Easement Area.
(ii) Enjoin the violation, ex parte as necessary, by temporary or
permanent injunction without the necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies.
(iii) Pursue and obtain other legal or equitable relief, including, but not
limited to, the restoration of the Easement Area to the condition in which it existed prior to any
such violation or injury. This remedy is expressly available notwithstanding the ability to claim
damages as provided for in subdivision (i).
(iv) Otherwise enforce this Irrevocable Offer.
11086.0203/2827954v3
(e) Notice of Dispute.
(i) If the violating Parry provides the non -violating Parry or Parties
and/or third party beneficiaries with a Notice of Dispute, as provided herein, the non -violating
Parry or Parties and/or third party beneficiaries shall meet and confer with the violating Party at a
mutually agreeable place and time, not to exceed thirty (30) days from the date that the non -
violating Party or Parties and/or third party beneficiaries receive the Notice of Dispute. The non -
violating Party or Parties and/or third party beneficiaries shall consider all relevant information
concerning the disputed violation provided by the violating Parry and shall determine whether a
violation has in fact occurred and, if so, whether the Notice of Violation and demand for cure
issued by the non -violating Party or Parties and/or third party beneficiaries is appropriate in light
of the violation.
(ii) If, after reviewing the violating Party's Notice of Dispute,
conferring with the violating Party, and considering all relevant information related to the
violation, the non -violating Party or Parties and/or third party beneficiaries determine that a
violation has occurred, the non -violating Party or Parties and/or third party beneficiaries shall give
the violating Party notice of such determination in writing. Upon receipt of such determination,
the violating Party shall have fifteen (15) days to cure the violation. If said cure reasonably
requires more than fifteen (15) days, the violating Parry shall, within the fifteen (15) day period,
submit to the non -violating Party or Parties and/or third party beneficiaries for review and approval
a plan and time schedule to diligently complete a cure. The violating Party shall complete such
cure in accordance with the approved plan.
(f) Conflicting Notices of Violation.
(i) If any Party receives a Notice of Violation that is in material conflict
with one or more prior written Notices of Violation that have not yet been cured by the Party
(hereinafter "Active Notice(s) of Violation") such that the conflict makes it impossible for the
Party to carry out the cure consistent with all prior Active Notices of Violation, the Party shall give
written notice (hereinafter "Notice of Conflict") to the non -violating Parry or Parties and/or third
party beneficiaries issuing the later, conflicting Notice(s) of Violation. The Party shall issue said
Notice of Conflict to the appropriate non -violating Party or Parties and/or third party beneficiaries
within fifteen (15) days of the receipt of each such conflicting Notice of Violation. A valid Notice
of Conflict shall describe the conflict with specificity, including a description of how the conflict
makes compliance with all Active Notices of Violation impossible.
(ii) Upon issuing a valid Notice of Conflict to the appropriate non -
violating Party or Parties and/or third party beneficiaries, as described above, the violating Party
shall not be required to carry out the cure described in the conflicting Notice or Notices of
Violation until such time as the non -violating Party or Parties responsible for said conflicting
Notice(s) of Violation issue(s) a revised Notice of Violation that is consistent with prior Active
Notices of Violation. Upon receipt of a revised, consistent Notice of Violation, the violating Party
shall carry out the cure described in such notice within the time period(s) described in Section 10(c)
above. Notwithstanding Section 10(g), failure to cure within said time period(s) shall entitle the
non -violating Party or Parties to the remedies described in Section 10(d) and Section 10(h).
11086.0203/2827954v3
(iii) The failure of the violating Parry to issue a valid Notice of Conflict
within fifteen (15) days of receipt of a conflicting Notice of Violation shall result in a waiver of
the violating Parry's ability to claim a conflict.
(g) Immediate Action. Notwithstanding anything contained herein to the
contrary, in the event that circumstances require immediate action to prevent or mitigate significant
damage to the Conservation Values of the Easement Area, the Party or Parties and/or third party
beneficiary seeking enforcement pursuant to Section 10(b) above may immediately pursue all
available remedies, including injunctive relief, available pursuant to both this Irrevocable Offer
and state and federal law. The non -violating Party or Parties may immediately pursue all available
remedies without waiting for the expiration of the time periods provided for cure or Notice of
Dispute as described in Section 10(c). The written notice pursuant to this paragraph may be
transmitted to the violating Party by facsimile, email transmission or other means and shall be
copied to the other Party or Parties and/or third party beneficiaries listed in Section 13 of this
Irrevocable Offer. The rights of the non -violating Party or Parties and/or third party beneficiaries
under this paragraph apply equally to actual or threatened violations of the terms of this Irrevocable
Offer. The violating Party agrees that the remedies at law for any violation of the terms of this
Irrevocable Offer are inadequate and that the non -violating Party or Parties and third parry
beneficiaries shall be entitled to the injunctive relief described in this section, both prohibitive and
mandatory, in addition to such other relief to which they may be entitled, including specific
performance of the terms of this Irrevocable Offer, without the necessity of proving either actual
damages or the inadequacy of otherwise available legal remedies. The remedies described in this
Section 10(Z) shall be cumulative and shall be in addition to all remedies now or hereafter existing
at law or in equity, including but not limited to, the remedies set forth in California Civil Code
Section 815, et seq., inclusive.
(h) Costs of Enforcement. Any costs incurred in enforcing, judicially or
otherwise, the terms, provisions, and restrictions of this Irrevocable Offer, including without
limitation, the costs of suit, and attorney's fees and any costs of restoration necessitated by a
Party's negligence or breach of this Irrevocable Offer, shall be borne by and recoverable against
the non -prevailing party in such proceedings.
(i) Enforcement Discretion. Enforcement of the terms of this Irrevocable Offer
by a Party and/or third party beneficiary shall be at the discretion of the Parry and/or third parry
beneficiary, and any forbearance by such Party and/or third party beneficiary to exercise its rights
under this Irrevocable Offer in the event of any breach of any term of this Irrevocable Offer by a
Party or any subsequent transferee shall not be deemed or construed to be a waiver by the non -
violating Party or Parties and third party beneficiary of such terms or of any subsequent breach of
the same or any other term of this Irrevocable Offer or of any of the rights of the non -violating
Party or Parties and third party beneficiary under this Irrevocable Offer. No delay or omission by
the non -violating Party or Parties and/or third party beneficiaries in the exercise of any right or
remedy upon any breach by the violating Party shall impair such right or remedy or be construed
as a waiver. Further, nothing in this Irrevocable Offer creates a non -discretionary duty upon the
non -violating Party or Parties and/or third party beneficiaries to enforce its provisions, nor shall
deviation from these terms and procedures, or failure to enforce its provisions give rise to a private
right of action against the non -violating Party or Parties and/or third party beneficiaries by any
third parties.
11086.0203/2827954v3
(j) Acts Beyond Grantor's Control. Nothing contained in this Irrevocable
Offer shall be construed to entitle Grantee, its successors or assigns to bring any action against
Grantor, its successors or assigns for any injury to or change in the Easement Area resulting from:
(i) Any natural cause beyond Grantor's control, including without
limitation, fire not caused by Grantor, flood, storm, and earth movement;
(ii) Any prudent action taken by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Easement Area resulting from such causes;
provided that once the emergency has abated, Grantor, its successors or assigns promptly take all
reasonable and necessary actions required to restore the Easement Area to the condition it was in
immediately prior to the emergency;
(iii) Acts by Grantee, Developer or their employees, directors, officers,
agents, contractors, or representatives; or
(iv) Acts of unrelated third parties (including any governmental
agencies) that are beyond Grantor's control.
(v) Notwithstanding the foregoing, Grantor must obtain any applicable
governmental permits and approvals for any emergency activity or use permitted by this
Irrevocable Offer, and undertake any activity or use in accordance with all applicable federal, state,
local and administrative agency statutes, ordinances, rules, regulations, orders or requirements.
(k) Acts Beyond Grantee's Control. Nothing contained in this Irrevocable
Offer shall be construed to entitle Grantor, its successors or assigns to bring any action against
Grantee, its successors or assigns for any injury to or change in the Easement Area resulting from:
(i) Any natural cause beyond Grantee's control, including without
limitation, fire not caused by Grantee, flood, storm, and earth movement;
(ii) Any prudent action taken by Grantee under emergency conditions
to prevent, abate, or mitigate significant injury to the Easement Area resulting from such causes,
provided that once the emergency has abated, Grantee, its successors or assigns promptly take all
reasonable and necessary actions required to restore the Easement Area to the condition it was in
immediately prior to the emergency;
(iii) Acts by Grantor, Developer or their employees, directors, officers,
agents, contractors, or representatives; or
(iv) Acts of unrelated third parties (including any governmental
agencies) that are beyond Grantee's control.
(v) Notwithstanding the foregoing, Grantee must obtain any applicable
governmental permits and approvals for any emergency activity or use permitted by this
Irrevocable Offer, and undertake any activity or use in accordance with all applicable federal, state,
local and administrative agency statutes, ordinances, rules, regulations, orders or requirements.
11086.0203/2827954v3
(1) Acts Beyond Developer's Control. Nothing contained in this Irrevocable
Offer shall be construed to entitle Grantor or Grantee to bring any action against Developer for
any injury to or change in the Easement Area resulting from:
(i) Any natural cause beyond Developer's control, including without
limitation, fire not caused by Developer, flood, storm, and earth movement;
(ii) Any prudent action taken by Developer under emergency conditions
to prevent, abate, or mitigate significant injury to the Easement Area resulting from such causes,
provided that once the emergency has abated, Developer promptly takes all reasonable and
necessary actions required to restore the Easement Area to the condition it was in immediately
prior to the emergency;
(iii) Acts by Grantor, Grantee or their employees, directors, officers,
agents, contractors, or representatives; or
(iv) Acts of third parties (including any governmental agencies) that are
beyond Developer's control.
(v) Notwithstanding the foregoing, Developer must obtain any
applicable governmental permits and approvals for any emergency activity or use permitted by
this Irrevocable Offer, and undertake any activity or use in accordance with all applicable federal,
state, local and administrative agency statutes, ordinances, rules, regulations, orders or
requirements.
(m) Use of Maintenance and Monitoring Endowment. If a court of competent
jurisdiction determines that there has been a violation of any term of this Irrevocable Offer:
(i) Funds from the Maintenance and Monitoring Endowment which
was created to manage the Easement Area cannot be used to pay damages awarded as part of the
judgment; and
(ii) Funds from the Maintenance and Monitoring Endowment which
was created to manage the Easement Area cannot be used to restore the Easement Area to the
condition in which it existed prior to the violation.
11. Access. This Irrevocable Offer does not convey a general right of access to the
public or a general right of access to the Easement Area.
12. Costs and Liabilities.
(a) Grantor, its successors and assigns shall retain all responsibilities and shall
bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance (except Long -Term Maintenance pursuant to Section 15) of the Grantor's Property.
Grantor agrees Grantee shall not have any duty or responsibility for the operation, upkeep, or
maintenance (except for those duties required of Grantee by the Long -Term Maintenance pursuant
to Section 15) of the Grantor's Property, the monitoring of hazardous conditions thereon, or the
protection of Grantor, the public or any third parties from risks relating to conditions on the
11086.0203/2827954v3
Grantor's Property. Grantor, its successor or assign, and Grantee each are responsible for
obtaining any applicable governmental permits and approvals for any activity or use permitted by
this Conservation Easement and any activity or use shall be undertaken in accordance with all
applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations,
orders and requirements.]
(b) Hold Harmless. Grantor, and its successors and assigns shall hold harmless,
protect, defend and indemnify City, Developer and Grantee and their respective directors,
councilmember, officers, employees, agents, contractors, and representatives and the heirs,
personal representatives, successors and assigns of each of them ("Indemnified Party" and
collectively "Indemnified Parties") from and against any and all liabilities, penalties, costs, losses,
damages, expenses (including, without limitation reasonable attorneys' fees and experts' fees),
causes of action, claims, demands, orders, liens or judgments (each a "Claim" and, collectively,
"Claims") which are in contravention of this Irrevocable Offer, arising from or in any way
connected with: injury to or the death of any person, or physical damage to any property, resulting
from any act, omission, condition, or other matter related to or occurring on or about the area of
the Grantor's Property not constituting the Easement Area regardless of cause unless caused by
the negligence or willful misconduct of any of the Indemnified Parties.
(c) Taxes, No Liens. Grantor and its successors and assigns shall pay before
delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed
against the Grantor's Property by competent authority, including any taxes imposed upon, or
incurred as a result of, this Irrevocable Offer, and shall furnish Grantee with satisfactory evidence
of payment, if assessed, upon request. Grantor, Grantee, and their successors and assigns shall
keep the Easement Area free from any liens. Should either Grantor's work or Grantee's work in
or upon the Easement Area result in a lien on the Easement Area, Grantor or Grantee, as the case
may be, shall take all steps required to have said lien removed from the Easement Area.
(d) Condemnation. Pursuant to California Code of Civil Procedure
Section 1240.055, this Irrevocable Offer is "property appropriated to public use," as used in
Article 6 (commencing with Section 1240.510) and Article 7 (commencing with
Section 1240.610) of Chapter 3 of Title 7 of the California Code of Civil Procedure. A person
authorized to acquire property for public use by eminent domain shall seek to acquire the Easement
Area, if at all, only as provided in California Code of Civil Procedure Section 1240.055. If any
person seeks to acquire the Easement Area for public use, Grantee shall comply with all obligations
of the holder of a conservation easement under California Code of Civil Procedure
Section 1240.055. If the Conservation Easement is condemned, the net proceeds from the
condemnation shall be used in compliance with California Government Code Section 659660).
(e) Subsequent Transfers.
(i) By City and Grantee. This Irrevocable Offer is transferable by City
as provided above. This Irrevocable Offer is also transferrable by Grantee, but Grantee may assign
its rights and delegate obligations under this Irrevocable Offer only to an entity or organization
authorized to acquire and hold conservation easements pursuant to California Civil Code
Section 815.3 and California Government Code Section 65965-65968 (or any successor
provision(s) then applicable) and only with the prior written approval of City or RWQCB, which
11086.0203/2827954v3
approval shall not be unreasonably withheld, conditioned or delayed. Grantor expressly agrees
and acknowledges that the City may take any action required to transfer to Grantee the City's rights
pursuant to this Irrevocable Offer without obtaining prior written approval from Grantor. Grantee
shall give Grantor at least sixty (60) days prior written notice of the proposed assignment or
transfer. Grantee shall record the assignment in the Official Records. The failure of Grantee to
perform any act provided in this section shall not impair the validity of this Irrevocable Offer or
limit its enforcement in any way. Unless otherwise agreed by City or RWQCB and Grantee, along
with such transfer of this Irrevocable Offer, Grantee shall transfer any funding remaining in the
Maintenance and Monitoring Endowment and Legal Enforcement and Defense Fund it is then
holding for purposes of this Irrevocable Offer to a qualified endowment holder under California
Government Code Section 65965 et seq., after satisfying all outstanding contracts and obligations
on those funds. Any transfer under this Section is subject to the requirements of Subsection 19(n).
(ii) Dissolution of Grantee. Grantee shall immediately transfer the
Conservation Easement and deliver any Maintenance and Monitoring Endowment and Legal
Enforcement and Defense Fund funds it is then holding for purposes of this Irrevocable Offer, to
an entity or other non-profit organization in accordance with Subsection 12(e)(i) above, if any of
the following occurs:
(iii) Grantee dissolves;
(iv) Grantee is the subject of a voluntary or involuntary petition in
bankruptcy;
(v) Grantee is unable to carry out its obligations under this Conservation
Easement; or
(vi) City or RWQCB reasonably determines that the Maintenance and
Monitoring Endowment held by Grantee, or its successor entity, are not being held, managed,
invested, or disbursed for conservation purposes and consistent with this Irrevocable Offer and
legal requirements.
(f) By Grantor.
(i) Covenant Running with the Land. The covenants, conditions, and
restrictions contained in this Irrevocable Offer are intended to and shall run with the land and bind
all future owners of any interest in the Easement Area. Grantor, its successor or assign agrees to
(i) incorporate by reference to the title of and the recording information for this Irrevocable Offer
in any deed or other legal instrument by which each divests itself of any interest in all or a portion
of the Easement Area, including, without limitation, a leasehold interest and (ii) give actual notice
to any such transferee or lessee of the existence of this Irrevocable Offer. Grantor, its successor
and assign agrees to give written notice to Grantee of the intent to transfer any interest at least
sixty (60) days prior to the date of such transfer. The failure of Grantor, its successor or assign, or
Grantee to perform any act provided in this Section 12 shall not impair the validity of this
Irrevocable Offer or limit its enforceability in any way, and Grantor, its successors or assigns
assume any liability relating to transfer(s) or assignment(s) to bona fide purchasers without notice
11086.0203/2827954v3
of the existence or terms of this Irrevocable Offer. Any transfer under this Section is subject to
the requirements of Subsection 19(n).
(ii) From and after the date of any transfer of all or any portion of the
Easement Area by Grantor and each transfer thereafter, (i) the transferee shall be deemed to have
assumed all of the obligations of Grantor as to the portion transferred, as set forth in this
Irrevocable Offer, (ii) the transferee shall be deemed to have accepted the restrictions contained
herein as to the portion transferred, (iii) the transferor, as applicable, shall have no further
obligations hereunder except for any obligations pursuant to Subsection 19(g), and (iv) all
references to Grantor in this Irrevocable Offer shall thereafter be deemed to refer to such transferee.
(g) Additional Interests. Grantor, its successors and assigns shall not change
any existing easements or other existing interests in the Easement Area or grant additional
easements or other interests in the surface or subsurface of the Easement Area, or interest of any
type (other than a security interest that is subordinate to this Irrevocable Offer), or grant or
otherwise abandon any water agreement relating to the Easement Area, without first obtaining the
written consent of Grantee. Grantee may withhold such consent if it determines that the proposed
interest or transfer is inconsistent with the purposes of this Irrevocable Offer or may impair or
interfere with the Conservation Values of the Easement Area. This section shall not prohibit
transfer of a fee or leasehold interest in the Easement Area that is subject to this Irrevocable Offer
and complies with this Section 12 [Please confirm], as applicable. Grantor, its successors and
assigns shall record any additional easements or other interests in the Official Records and shall
provide a copy of the recorded document to Grantee.
13. Notices. All notices and demands will be given in writing by personal delivery,
certified mail, postage prepaid, and return receipt requested, or by Federal Express or other
overnight carrier. Notices will be considered given upon the earlier of (a) personal delivery,
(b) two (2) business days following deposit in the United States mail, postage prepaid, certified or
registered, return receipt requested, or (c) one (1) business day following deposit with Federal
Express or other overnight carrier. The Parties will address such notices as provided below or as
may be amended by written notice:
GRANTOR: Lam Ngo and Huyen Lam Tran
13341 Wilson Street
Garden Grove, California 92844
CITY: City of Temecula
41000 Main Street
Temecula, California 92590
Attention: Aaron Adams, City Manager
COPY TO: Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Attention: Peter M. Thorson, City Attorney
11086.0203/2827954v3
GRANTEE: Fallbrook Land Conservancy, a California non-profit corporation
1815 S. Stagecoach Lane
Fallbrook, California 92028
Attention: Karla Standridge, Executive Director
DEVELOPER: To Woodside 055, LP:
Woodside 05 S, LP
Attention: Trent Heiner
1250 Corona Pointe #500,
Corona, California 92879
With a copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
One American Plaza
600 West Broadway, 27th Floor
San Diego, California 92101-0903
Attention: Jeffrey A. Chine, Esq.
To Wingsweep:
Wingsweep Corporation
Attention: Joseph T. Gauthier, Esq.
c/o UNICOM PLAZA, Suite 310
15535 San Fernando Mission Boulevard
Mission Hills, California 91345
If the Conservation Easement is assigned, the assignment document shall update the Notices
provisions. When the underlying fee for the Easement Area is conveyed, the successor shall record
a document entitled Conservation Easement/Change of Notices Provisions.
14. Amendment. Grantor, Grantee, City (while City is a party to this Irrevocable
Offer), and Developer (while Developer is a party to this Irrevocable Offer) may amend this
Irrevocable Offer only by mutual written agreement. Any such amendment shall be consistent
with the Purpose of the Conservation Easement and shall not affect its perpetual duration. City
(while City is a party to this Irrevocable Offer) shall record any amendments to this Irrevocable
Offer approved by Developer (while Developer is a party to this Irrevocable Offer) and the Grantee
in the Official Records and shall provide a copy of the recorded document to the Grantor, Grantee,
and if applicable, Developer. Grantee (after City's rights to the Irrevocable Offer are assigned to
Grantee) shall record any amendments to this Irrevocable Offer approved by the City or RWQCB
in the Official Records and shall provide a copy of the recorded document to the Grantor and City.
Grantor expressly agrees and acknowledges that Grantor will execute an amendment to this
Irrevocable Offer after the City accepts the Irrevocable Offer of the Conservation Easement to
incorporate any updated Exhibits and/or terms of the Irrevocable Offer.
11086.0203/2827954v3
15. Long -Term Maintenance.
(a) Grantee's Responsibilities for Maintenance and Management. Grantee, its
successors and assigns shall be responsible for in -perpetuity, ongoing, long-term maintenance and
management of the Easement Area. Grantee, its successors and assigns shall be responsible for
in -perpetuity, ongoing, long-term maintenance and management of the Easement Area in
accordance with the "Nicolas Road/Calle Girasol Intersection Improvements Project Long-term
Management Plan" prepared by HELIX Environmental Planning dated June 2023. A copy of the
title page is attached at EXHIBIT H.
(b) Restoration Responsibilities. Grantor, Grantee, Developer, and their
successors and assigns shall each individually be obligated to repair, remediate, or restore the
Easement Area damaged by any activities prohibited by Section 5 herein to the extent Grantor,
Grantee, Developer, and/or their successors and assigns is responsible therefor.
(c) Annual Reporting. Grantee, its successors and assigns shall prepare an
annual monitoring and maintenance report documenting activities performed under
Subsection 15(a) above, and shall make such report available to Grantor upon request.
(d) Grantor Restoration. When activities are performed pursuant to
Subsection 15(b) and to the extent Grantor is responsible, Grantee, its successors and assigns, shall
retain, at Grantor's expense, a qualified Biological Monitor to prepare a Restoration Plan and to
oversee/monitor such restoration activities. Grantee shall have its Biological Monitor submit a
draft Restoration Plan to Grantor for review prior to its implementation. Upon completion of
restoration as specified in the approved Restoration Plan, Grantee shall have a Biological Monitor
prepare a detailed monitoring report, and Grantee shall make the report available to Grantor within
thirty (30) days of completion of restoration activities. Grantee, its successors or assigns and
Biological Monitor shall sign the monitoring report, and the report shall document the Biological
Monitor's name and affiliation, dates Biological Monitor was present on -site, activities observed
and their location, Biological Monitor's observations regarding the adequacy of restoration
performance by Grantee, its successors or assigns, or its contractor in accordance with the
approved Restoration Plan, corrections recommended and implemented. Grantor shall be
responsible for compensating and/or reimbursing Biological Monitor and Grantee for all
reasonable and ordinary expenses incurred by them in discharging their respective responsibilities
under this subsection within thirty (30) days of invoice.
(e) Grantee Restoration. When activities are performed pursuant to
Subsection 15(b) for which Grantee is responsible, Grantee shall retain, at Grantee's expense, a
qualified Biological Monitor to prepare a Restoration Plan and to oversee/monitor such restoration
activities. Upon completion of restoration as specified in the approved Restoration Plan, Grantee
shall have a Biological Monitor prepare a detailed monitoring report. Grantee, its successors or
assigns and Biological Monitor shall sign the monitoring report, and the report shall document the
Biological Monitor's name and affiliation, dates Biological Monitor was present on -site, activities
observed and their location, Biological Monitor's observations regarding the adequacy of
restoration performance by Grantee, its successors or assigns, or its contractor in accordance with
the approved Restoration Plan, corrections recommended and implemented.
11086.0203/2827954v3
(f) Developer Restoration. When activities are performed pursuant to
Subsection 15(b) for which Developer is responsible, Grantee shall retain, at Developer's expense,
a qualified Biological Monitor to prepare a Restoration Plan and to oversee/monitor such
restoration activities. Upon completion of restoration as specified in the approved Restoration
Plan, Grantee shall have a Biological Monitor prepare a detailed monitoring report. Grantee, its
successors or assigns, and Biological Monitor shall sign the monitoring report, and the report shall
document the Biological Monitor's name and affiliation, dates Biological Monitor was present on -
site, activities observed and their location, Biological Monitor's observations regarding the
adequacy of restoration performance by Grantee, its successors or assigns, or its contractor in
accordance with the approved Restoration Plan, corrections recommended and implemented.
Developer shall be responsible for compensating and/or reimbursing Biological Monitor and
Grantee for all reasonable and ordinary expenses incurred by them in discharging their respective
responsibilities under this subsection within thirty (30) days of invoice.
(g) Force Majeure. If any party to this Irrevocable Offer is delayed, hindered
in or prevented from the performance of any act required under this Irrevocable Offer by reason
of strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or
reasonable substitutes therefor, governmental action or inaction (including failure, refusal or delay
in issuing permits, approvals and/or authorizations which is not the result of the action or inaction
of the party claiming such delay), riots, civil commotions, war, earthquake, fire, flood or other
casualty or natural disaster, and other causes beyond the reasonable control of the parry delayed in
performing work or doing acts required under the provisions of this Irrevocable Offer, then
performance of such act will be excused for the period of the delay and the period for the
performance of any such act will be extended for a period equivalent to the period of such
delay. The provisions of this Subsection 15(g) will not operate to excuse a party from any payment
required under the provisions of this Irrevocable Offer.
16. Funding.
(a) Initial Financing Requirement. Prior to or concurrent with the City's
recordation of the Certificate of Acceptance of the Irrevocable Offer of the Conservation Easement
in the Official Records, Developer shall disburse to Grantee a check in the amount of Four
Thousand Dollars ($4,000.00) ("Initial Financial Requirement"), which Initial Financial
Requirement is for the purpose of reimbursing Grantee for its cost and expenses incurred in
connection with Grantee's acceptance of the rights and obligations under the Conservation
Easement, and for fulfilling certain of Grantee's obligations hereunder for up to the first three (3)
years following the date of this Irrevocable Offer.
(b) Permanent Endowment. In addition to the Initial Financial Requirement
and in accordance with the endowment agreement, prior to or concurrent with the City's
recordation of the Certificate of Acceptance of the Irrevocable Offer of Dedication of the
Conservation Easement in the Official Records, Developer shall pay to Grantee an endowment in
the amount of Three Hundred Thirty -Five Thousand Eight Hundred Sixty -Five and 98/100 Dollars
($335,865.98) ("Maintenance and Monitoring Endowment"). The Maintenance and Monitoring
Endowment is for the purpose of fulfilling Grantee's obligations under this Irrevocable Offer.
11086.0203/2827954v3
(c) Legal Enforcement and Defense Fund. Prior to or within thirty (30) days
of the City's recordation of the Irrevocable Offer of Dedication of the Conservation Easement in
the Official Records, Developer shall disburse to Grantee a check for the legal enforcement and
defense fund in the amount of Six Thousand Seven Hundred Seventeen and 32/100 Dollars
($6,717.32) ("Legal Enforcement and Defense Fund").
17. Recordation. City's consent to recordation of this Irrevocable Offer and its
Acceptance of the Offer of Dedication for Conservation Easement as provided herein and the
recordation of said documents in the Official Records constitutes notice of the rights granted by
Grantor to the City and Grantee pursuant to this Irrevocable Offer. After the City's recordation of
the Certificate of Acceptance in substantially the form attached as EXHIBIT D hereto, Grantee
may record such documents that Grantee deems necessary to preserve its rights in this Irrevocable
Offer. Grantor agrees to execute any amendments necessary to effectuate Grantee's rights in
connection with the Conservation Easement.
18. Estoppel Certificate. Upon request, Grantee shall within fifteen (15) days execute
and deliver to Grantor, its successors and assigns any document, including an estoppel certificate,
which certifies compliance with any obligation of Grantor, its successors and assigns contained in
this Irrevocable Offer and otherwise evidences the status of this Irrevocable Offer as may be
requested by Grantor, its successors and assigns.
19. General Provisions.
(a) Controlling Law. The laws of the State of California shall govern the
interpretation and performance of this Irrevocable Offer.
(b) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Irrevocable Offer shall be liberally construed in favor of and to accomplish
the Purpose of this Irrevocable Offer and the policy and purpose set forth in California Civil Code
Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation
consistent with the Purpose of this Irrevocable Offer that would render the provision valid shall be
favored over any interpretation that would render it invalid.
(c) Severability. If a court of competent jurisdiction voids or invalidates on its
face any provision of this Irrevocable Offer, such action shall not affect the remainder of this
Irrevocable Offer. If a court of competent jurisdiction voids or invalidates the application of any
provision of this Irrevocable Offer to a person or circumstance, such action shall not affect the
application of the provision to other persons or circumstances.
(d) Entire Agreement. This instrument together with the attached exhibits and
any documents referred to herein sets forth the entire agreement of the parties with respect to the
Conservation Easement and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Easement. No alteration or variation of this instrument
shall be valid or binding unless contained in an amendment in accordance with Section 17.
(e) No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor's title in any respect.
11086.0203/2827954v3
(f) Successors and Assigns. The covenants, terms, conditions, and restrictions
of this Irrevocable Offer shall be binding upon, and inure to the benefit of, the parties hereto and
their respective personal representatives, heirs, successors, and assigns and shall constitute a
servitude running in perpetuity with the Easement Area. Grantor's successors are expressly bound
by the obligations of Grantor herein with respect to the area comprising the Conservation
Easement, including any obligations to cooperate with the City, Developer, and Grantee to execute
any amendments necessary to effectuate Grantee's rights in connection with the Conservation
Easement and to update any amendments to this Irrevocable Offer.
(g) Termination of Rights and Obligations. Provided the transfer was
consistent with the terms of this Irrevocable Offer, a party's rights and obligations under this
Irrevocable Offer shall terminate upon transfer of the party's interest in the Conservation Easement
or Easement Area, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
(h) Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon its
construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of any disparity
between the counterparts produced, the recorded counterpart shall be controlling.
0) Exhibits. All Exhibits referred to in this Irrevocable Offer are attached and
incorporated herein by reference.
(k) No Hazardous Materials Liability.
(i) Grantor represents and warrants to Grantee it has no knowledge or
notice of any Hazardous Materials (defined below) or underground storage tanks existing,
generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or
from the Grantor's Property, or transported to or from or affecting the Grantor's Property.
(ii) Without limiting the obligations of Grantor herein, Grantor hereby
releases and agrees to indemnify, protect, defend and hold harmless the Indemnified Parties
(defined in Subsection 11(b)) against any and all Claims (defined in Subsection 11(b)) arising from
or connected with any Hazardous Materials present, alleged to be present, or otherwise associated
with the Grantor's Property at any time, except that this release and indemnification shall be
inapplicable to the Indemnified Parties with respect to any Hazardous Materials placed, disposed
or released by the Indemnified Parties, as applicable. This release and indemnification includes,
without limitation, Claims for (i) injury to or death of any person or physical damage to any
property; and (ii) the violation or alleged violation of, or other failure to comply with, any
Environmental Laws (defined below).
(1) Despite any contrary provision of this Irrevocable Offer, the parties do not
intend this Irrevocable Offer to be, and this Irrevocable Offer shall not be, construed such that it
creates in or gives Grantee any of the following:
11086.0203/2827954v3
(i) The obligations or liabilities of an "owner" or "operator," as those
terms are defined and used in Environmental Laws (defined below), including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA");
(ii) The obligations or liabilities of a person described in 42 U.S.C.
Section 9607(a)(3) or (4);
(iii) The obligations of a responsible person under any applicable
Environmental Laws;
(iv) The right to investigate and remediate any Hazardous Materials
associated with the Grantor's Property unless said investigation or remediation is related to the
investigation or remediation of the Easement Area; or
(v) Any control over Grantor's ability to investigate, remove, remediate
or otherwise clean up any Hazardous Materials associated with the Grantor's Property unless said
investigation or remediation by Grantor is related to the Easement Area.
(1) The term "Hazardous Materials" includes, without
limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products,
including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials defined in CERCLA; Resource Conservation
and Recovery Act (42 U.S.C. 6901 et seq.); the Hazardous Materials Transportation Act
(49 U.S.C. Section 5101 et seq.); the Hazardous Waste Control Law (California Health & Safety
Code Section 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety
Code Section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant
to them, or any other applicable federal, state or local laws, ordinances, rules, regulations or orders
now in effect or enacted after the date of this Conservation Easement.
(2) The term "Environmental Laws" includes, without
limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation,
order or requirement relating to pollution, protection of human health or safety, the environment
or Hazardous Materials. Grantor and Grantee represents, warrants and covenants to each other
that Grantor and Grantee's activities upon and use of the Easement Area will comply with all
Environmental Laws.
(m) Extinguishment. If circumstances arise in the future that render the Purpose
of the Conservation Easement impossible to accomplish, this Irrevocable Offer can only be
terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent
jurisdiction.
(n) Warran . Grantor represents and warrants that Grantor is the sole owner
of fee simple title to the Grantor's Property; that the Grantor's Property is not subject to any other
conservation easement; and there are no outstanding mortgages, liens, encumbrances or other
interests in the Grantor's Property (including, without limitation, water and mineral interests) that
may conflict or are otherwise inconsistent with this Irrevocable Offer and which have not been
11086.0203/2827954v3
expressly subordinated to this Irrevocable Offer by a written, recorded Subordination Agreement
approved by Grantee.
(o) No Merger. The doctrine of merger shall not operate to extinguish this
Irrevocable Offer if the Conservation Easement and the Easement Area become vested in the same
parry. If, despite this intent, the doctrine of merger applies to extinguish the Conservation
Easement then, unless Grantor and Grantee otherwise agree in writing, a replacement conservation
easement containing the same protections embodied in this Irrevocable Offer shall be recorded
against the Easement Area.
(p) Change of Conditions. If one or more of the Purposes of the Conservation
Easement may no longer be accomplished, such failure of purpose shall not be deemed sufficient
cause to terminate the entire Conservation Easement as long as any other purpose of the
Conservation Easement may be accomplished. In addition, the inability to carry on any or all of
the permitted uses, or the unprofitability of doing so, shall not impair the validity of this Irrevocable
Offer or be considered grounds for its termination or extinguishment. Grantor and Grantee agree
that global warming and climate change -caused effects shall not be a basis for termination of this
Irrevocable Offer.
[REMAINDER LEFT INTENTIONALLY BLANK]
11086.0203/2827954v3
IN WITNESS WHEREOF, Grantor and Developer have executed this Irrevocable Offer as
of the date set forth below and have agreed to be bound by the terms and provisions hereof.
GRANTOR [notarization required]:
LAM NGO AND HUYEN LAM TRAN,
husband and wife as joint tenants
Dated:
Lam Ngo
Dated:
Huyen Lam Tran
11086.0203/2827954v3
DEVELOPER [notarization required]
Woodside 05S, LP,
a California limited partnership
Dated:
By: WDS GP, Inc.,
A California corporation,
Its general partner
LO-A
Name:
Title:
Wingsweep Corporation,
a California corporation
Dated:
Corry Hong
President and Chief Executive Officer
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On , before me, ,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
11086.0203/2827954v3
CITY OF TEMECULA
Office of the City Clerk
41000 Main Street, Temecula, California 92590
CONSENT TO RECORDATION PURSUANT TO
GOVERNMENT CODE SECTION 7050
This is to certify that the City of Temecula, a California municipal corporation, hereby
consents to the recordation of the attached "IRREVOCABLE OFFER OF DEDICATION OF
REAL PROPERTY PURSUANT TO GOVERNMENT CODE SECTION 7050
(CONSERVATION EASEMENT)" pursuant to Government Code Section 7050. The purpose of
this Consent to Recordation is to provide record notice of said Irrevocable Offer of Dedication.
Pursuant to Government Code Section 7050, said offer of dedication is irrevocable and
may be accepted by the City of Temecula at any time. Any such acceptance will require formal
action by the City Council of the City of Temecula. The City of Temecula shall neither incur any
liability nor assume any responsibility for the real property interests described in said Irrevocable
Offer of Dedication until such time as the City of Temecula accepts the Conservation Easement
by formal action. Further, pursuant to the terms of the IRREVOCABLE OFFER OF
DEDICATION OF REAL PROPERTY PURSUANT TO GOVERNMENT CODE SECTION
7050 (CONSERVATION EASEMENT), the City of Temecula may transfer its interest in said
Irrevocable Offer Of Dedication and Conservation Easement after acceptance,
Dated:
CITY OF TEMECULA, a California municipal
corporation
Aaron Adams, City Manager
ATTEST:
Randi Johl, City Clerk
APPROVED AS TO FORM:
Peter M. Thorson, City Attorney
11086.0203/2827954v3
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PRELIMINARY REPORT Fidelity National Title Company
Your Reference: Roripaugh Project Order No.: 989-25008238-A-SG4
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TEMECULA, IN THE COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 3 OF PARCEL MAP NO. 18022, IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 112, PAGES 28 AND 29 OF PARCEL MAPS, RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
APN: 957-090-022-2
EXHIBIT A
-I-
F,XHIRIT R
LEGAL DESCRIPTION OF CONSERVATION EASEMENT
EXHIBIT A TO EXHIBIT 0
LEGAL_ DESCRIPTION OF CONSERVATION EASEMENT
APN- 957-090-022
NGOITRAN PROPERTY
That portion of Parcel 3 of Parcel Map No. 18022, in the City of Temecula. County of Riverside,
Slate of California, as shown on the Map recorded in Book 112, Pages 28 and 29 of Parcel Maps,
in the Office of the Country Recorder of said Riverside County, described as follows;
COMMENCING at the southwesterly corner of said Parc9 3, said paint being on the northerly
Right of Way line of Nicolas Road (55.00 foot half -width);
Thence along the westerly line of said Parcel 3 North 09°10'13" West 45.00 feet to the TRUE
POINT OF BEGINNING,
Thence continuing along said westerly line North 09°10'13" West 70-48 feel;
Thence leaving said westerly line North 49`27'43" East 324.31 feet;
Thence North 81'24'24" East 39.37 feet to the easterly line of said Parcel 3;
Thence along said easterly line South 08'10'35" East 144.72 feet -
Thence leaving said easterly line Soulh 82'07'37" West 31.88 feel;
Thence South 09°42' 1' 0" East f 11.13 feet:
Thence South 83"17'39" West 76.48 feet;
Thence South 85°2+4'51" West 152.81 feet;
Thence South 81 °36'16" West 52.27 feet to the TRUE POINT OF BEGINNING.
Containing 1.17 Acres, or 51.003 Square Feet. more or less
This description was prepared
by me or under my direction. p,� MV4
4
L Date: - 2a * ougLlETTE
No. 758E
Jo Duquette, P 7566 IPA �a
Michael Baker International September 2, 2070
40810 County Center Dave, Suite 200 JN 175051
Temecula, CA 92591 Page 1 of 1
EXHIBIT B
-I-
TV7T7n7T d"
DEPICTION OF CONSERVATION EASEMENT
CONSERVATION EASEMENT'
APN; 957-090-022
NGO/TRAM PROPERTY
DATA TABLE
BEARINGjDELTA
LENGTH
N09°10'13"w
45.00
2
N09' 10' 13'w
70.48'
3
N49 27'43"E
324.37
4
N81'24'24"E
39.37'
5
N08 10' 335"W
144.p7p2'
6
N82'07r37"E
31 .88'
i
N48"42'10"W
111.13
s
N83'17'39 E
66.48'
9
N85 24'51"E
152. 1
10
N81°36'16"E
52.27'
50 30 0 80
SCALE: 1"=60'
JOHN A. �
a OUQuETTE
7565 � .-�•
1 d,
TPOB
r
POC = POINT OF COMMENCEMENT SHEET 1 Of 1
TRaB TRUE POINT OF AEG I NPR I NG Michael
( } = ker
INDICATES RECORO DATA PER • ,
PAS 18022, PM8 1 12 f 28-29 1 N T E R N A T f 0 N A L
EXHIBIT C
-I-
VYUIRTT D
FORM OF CERTIFICATE OF ACCEPTANCE
Recording Requested by and when recorded
return to:
CITY OF TEMECULA
Attention: City Clerk
41000 Main Street
Temecula, California 92590
[SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY]
Assessor's Parcel No. 957-090-022 [X] Portions
Documentary Transfer Tax $0.00
This Instrument is for the benefit of the City of Temecula and is exempt from Recording Fees (Govt. Code § 27383),
Filing Fees (Govt. Code § 6103), and Documentary Transfer Tax (Rev & Tax Code § 11922).
CERTIFICATE OF ACCEPTANCE OF DEDICATION OF CONSERVATION
EASEMENT
(Government Code Section 27281)
The City of Temecula, a California municipal corporation ("City"), hereby accepts the
irrevocable offer of dedication for the Conservation Easement, and all uses necessary or
convenient thereto made by Lam Ngo and Huyen Lam Tran, husband and wife as joint tenants
(collectively "Grantor") in favor of the City in that certain IRREVOCABLE OFFER OF
DEDICATION OF EASEMENT PURSUANT TO GOVERNMENT CODE SECTION 7050
(CONSERVATION EASEMENT) dated and recorded in the Official Records
of the County of Riverside on as Document No.
The City hereby certifies that it accepts the dedication of the Conservation Easement, and
all uses necessary or convenient thereto described on EXHIBIT B and depicted on EXHIBIT C to
said IRREVOCABLE OFFER OF DEDICATION OF EASEMENT PURSUANT TO
GOVERNMENT CODE SECTION 7050 (CONSERVATION EASEMENT), and incorporated
herein by this reference, on behalf of the public for conservation easement purposes pursuant to
the authority granted by the City Council of the City of Temecula by Resolution No.
On , the City Council adopted Resolution No. accepting said
irrevocable offer of dedication of the Conservation Easement pursuant to Government Code
Section 7050 and authorized the City Manager to execute the Certificate of Acceptance. Pursuant
to the terms of the IRREVOCABLE OFFER OF DEDICATION OF EASEMENT PURSUANT
TO GOVERNMENT CODE SECTION 7050 (CONSERVATION EASEMENT), the City is
EXHIBIT D
-1-
authorized to transfer its interest to Grantee FALLBROOK LAND CONSERVANCY, a California
non-profit corporation at any time after the recordation of this Certificate of Acceptance.
Dated:
CITY OF TEMECULA, a California municipal
corporation
M.
Aaron Adams
EXHIBIT D
-2-
FYlr4TRTT F.
COVER PAGE OF MITIGATION PLAN
Mitigation Plan on file in Public Works Department of City of Temecula
HELIXirW
Nicolas - Celle Giral Roach and
Channel Improvemenfs Project
Habitat Mitigatlon and Monitoring Plon
August21.2019 I RVR-W
Prepared for.
Roripaugh Ranch JDA
c}o Decatur Advisors LLC
PO Bcx 2016
Carlsbad, CA 92018
Prepared by -
HELIX Environmental Planning, Inc.
7578 El Cajon Boulevard
La Mesa, CA 91242
EXHIBIT E
-I-
EXHIBIT F
TITLE REPORT
[NOTE: The attached Title Report is dated April 7, 2020. This Exhibit will be updated at
the time of Acceptance.]
EXHIBIT F
-I-
0 Fidelity National Title Company
4210 Rive rwalk Parkway, Suite 1,00, Riverside, CA 92505
Phone: (951)71M@(10- Fax: (9551)710-5955
Issuing Policies of Fidelity National Title Insurance Company
Title Officer- Steven GomezfAndrew Margo {BS-W Order Vo.: 989-2; 008_38-A-SC,4
Escrow Officer: Builder Services OAC
TO:
Decatur Advzo s I.LC
P.O. Boa 2016
Carlsbad: CA 92018
ATTN_ .Thamaa A. Fuller
YOUR REFERENCE: Rorip9ngh Project
PROPERTY ADDRESS: 31149 Indian Sommer Road, Temecula, CA
'MENDED PREL]INMURY REPORT
In response to the application for a policy 0 title insuramv rgferenced herobf, Fidelity' National Tide CnrorpaFry hersbn
report that it is prepared to rs-us. or a use to be is-aed, as of the data haregf a policy or policies of tills insurance
describing the laird and the estate or interest therein hereing0or sal forth, insuring against loss which may be :Lutatned In
reason of any dafmt, lien or aorrumbrance trot shown or FgAwred to as an exception herein or not excluded from coverage
pursrrantto the printadSchsdulas, Conditions and Stipulations or Conditions ofsaidpolrriuforms.
no printed Exceptions and Exclusions franc: the coverage and Limrdarwns on Covered Risks gfsaidpoliay orpalieias are set
forth m -attachment one. no polrriu to be issued mom' contain air arbrttrattorr clause. When the AMO.U?rt of Iiisararice is less
than that sat jurth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or
As Insured as the sxcZrsike rerae4' of the panics. Limitations on Covered Rislo applicuble ro the C'LTA and ALTA
Homeowner's Policies of Title hisurance which establish a Deductible Amount and a Maximum Dollar Limit of Lia6iRV fvr
certain col ages are also sat forth in _ vachinanf Cns. Copies of the policy forms should be read. TlieV are available from
the o cw which issued this: report.
This report (arid aRv srvppleme= or amendment. liererv) is issued scleb.' far the purpose gf fiacildaring the issrvattca of a
policy of title iasurarma and no biabilh�v is assumed hereby'_ Tf it is desired that liabilil�v bw aszamed prior W the issnao ce of a
policy of tine irisurarice, a Binder or Commitment should be reguezied.
The po2iriu(s) of ri8a insurance to be issued hereunder will be policy(s) of Fidelity National Title Insurance Company, a
Calornia Corporation.
Plea Se read the OXCeptioNf Sho,i'rr oi' referred tit herein aNd the excepnOrrS arrd e-%'Chd SiOrr S SeF fOF-lk iN _-irrachment 49Ne Of
tkis reparr Ceref7iUy. The exceptions arrd Lxchrsiams ai'i meaNF rOprOrrdi i'oN 1riFh Nohci of matters whirb are Not Covered
Nrribpr thi rer'm5 of thi tale iNfnrarrCCpoUey arrd fhaid bd be can?fmffy COrrSrdered
IF is iMP1V)'WQrr1 FO note Brat tkrf prCl!!1llrrapy report is Not a w;irren veprefeNranOrr aS to the CondihoN of tale amd mai' Arar
list cbl hems, defiers and enruatbrarrees affecting rifle to the laid_
Countersigned by:
C1 �
Authorized Signature
EXHIBIT F
-2-
0 Fidelity National Title Company
4210 Riverwalk Parkway, Suite 100, Riverside, CA 92505
Phone: (951)71M900• Fax: (951)710-W55
AMENDED PREMM Rii REPORT
EFFEC ID-E D_kTE: April 7, 20;0 at 7:30 a.m.} Amended: April15, 2024)r Amendment Ilia, _k
ORDERItiO,: 999-29008238 A-SG4
The farm of policy or policies of title insurance contemplated by this report is:
ALIA Standard Owners Policy
1_ THE ESTATE OR kF=ST DT THE LAUD HEREINAFTER DESCRIBED OR REFERRED TO CO''F.RF.T}
BY TIM REPORT I5:
A FEE
2_ TTTLE TO Sam ESTATE OR INTEREST AT THE DATE HEREOF IS 'VESTED 2 :
LAM NGO AtwD HT.-17-1ti LAM TR2-N, bu.sb and and wife as joint tenants
3_ THE LAND REFERRED TO DT THIS REPORT IS DESCRIBED AS FOLLOWS:
See Eshibit A attached hereto and made a part hereof.
EXHIBIT F
-3-
PRELLMD ARY REPORT FidO# h atianm] Title UmWmy
Your R.Efeienre: Rmtwugh Project Drdu Na.= 989-25098238-A-SG4
E30MIT A
LIEGAL DESCRIPTION
THE LAUD REFERRED TO HER=%T BELOW IS SITUATED IN THE CTTY OF TEMECULA. IN THE COU%]TY OF
RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED A5 FOLLOWS:
PARCEL 3 OF PARCEL MAP NO. 18022. IN THE CITY OF TEMECULA. COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 112. PAGES 28 AND 29 OF PARCEL MAPS, RECORD S OF
RIVERSIDE COUNTY, CALIFORNIA.
APN: 957-090-022-2
EXHIBIT F
-4-
PRELIhtIT RY REPORT FidEbty NadGnal Title Company
Your Reference: RoripzuA Project Orde=N4.: 9t 9-2a0t Z38-A-SG4
EXCEPTIONS
AT THE DATE HEREOF, FI' MS TO BE CONSH)ERED _�-N-D E-XCEPTIONS IO COVERAGE L� ADDITION
TO THE PRINTED EXCEPIIONS -D LICL-;SIGNS L� SAIlI POLICY TOR -If WO-U-M BE A5 FOLLOWS -
A.
B_
C_
Property taxes, which are a lien not yet due and payable: including any assessments collected with taxes to be levied
far the fiscal year 2020-2021
Property taxes, including any personal property taxes and any assessments collected wrth taxes, are as follows:
Tax Identifiication -No.:
Fiscal Year:
I st installment-
2nd Installment:
Homeowners Exemption:
Code Area:
957-090-022-2
2019-2020
$1,961.38, DELINQ[T=
$1,999.44, DELINQUMTi
$0.00
013-016
Said property has been declared tax defaulted for non -Payment of delinquent taxes for The Emal year 2015-2016.
APN No.: 957-094-022-2
Amounts to redeem for the above -stated fiscal year (and subsequent years if any) are:
Amount: $15,726.56,byApril 34, 2420
D. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the proszsions of
Chapter 3.5 (commencing with Section 75) or Part', Chapter 3, Articles 3 and 4, respecE ely, of the Revenue and
Taxation Code of the State of California as a result of the transfer of title to the vestee named in Schedule A or as a
remk of changes in ownership or new construction occurring prior to Date of Policsr_
E. The herein described land lies within the boundaries of Community Facilities District No_ 99-4 as disclosed by
"Notice of Special Tax Authorization? recorded September 21: 1M8 as Instrument -No. 272180 of Official Records_
1_ Water rights; claims or title to water, whether ar not disclosed by the public record-
2- The fact that all natural watercourses as shown on said Parcel Map must be kept free of all buildings, obstructions
and encroachments by land fills_
3. Coyenants, conditions and restrictions but omitting any covenants or restrictions, if any, including but not limited to
those based upon race, color, religion, sex, sexual orientation, familial status, marital status, disability, handicap,
national ongib citize3l-,W, immig atioo status, primary language_ ancestry, source of income, gender, gender
identity, gender expression, medical condition or genetic information. as set forth in applicable state or federal laws,
except to the extent that said cosuenant or restriction is permitted by applicable law, as set forth in the document
RecDrdmg Date: December 06, 1968
RecDrding ND: l 19457 Df Official FL -cords -
Said cDrenamts_ conditions and restrictions prorzde that a -.zalation thereof shall not defeat the lien of any mDrtgage
or deed Dftnvt made in good faith and farralue.
EXHIBIT F
-5-
PRELIIMB ARY REPORT
Your Rxyerenre: Roriwugh Prajert
EXCEPTIONS
{Continued]
MGdif atiom(s) of said ccnvnants, conditions and restrictions
Fidelity Natiowl Title Cbmpany
OrdesNo.= 99i-25M23&A-5G4
Recording Date:
January 02, 19b9
RecordineNo:
l 10 of Official Records
and Recording Date:
October 02, 1969
and Recardmg No:
101054 o f Official Records
and Recardmg Date:
December 22, 1970
and Rec41'dtng Na:
128173 o f Official Records
4- Easement(s) for the purposes) shomm below and rigbr, incidental thereto as set forth in a datument:
In favor of:
,5authem Cahforma Edison Company
Purpose:
Underground telephone, telegraph communications and electric lines
Recording Date=
March 11. 1969
Recording No:
23694 of 0flieia- Reeoras
Affects:
Underlying p-p-,ty
5- The ownership of said Land does not include rights of access to or from the street, hi*way, ar freeway abutting said
Land, such rights ha%ing been relinquished by said may.'plat.
Af wts:
Nicolas Road
fi- E.n% rxmmnnfal Constraint Sheet as set forth :in a document and w rep-ealed by the recital an the map, both as set
forth below:
Map - Recording NO.: Parcel Ma-P - o. IM2
7- Matters contained in that certam document
Entitled:
Agency Agreement No. 1761
Dated:
January 14, 1988
Executed bv:
Sar Ming Rang and Aigen D. Wong and Ranebo Califamia 'Water District, a public
corparatian
Recordmg Date:
March 22, 1988
RecordmeNo:
198 8-74107 of Official Records
Reference is hereby made to said document for fall particulars
S- A lien for the amount shown below and any other amount} due,
Amount: $317.77
Claimant: Rancho California Water District
Nature of Claim: Delinquent water charges
Recording Date: October 07, 2013
RecordmgNo: 2013-04821310 of Official Records
9- IntmtwnallyDeleted
EXHIBIT F
-6-
PRELM]h Y REPORT Fidelity Kst Gwl Title Cempam
Your Reference: Roripaugh Project CgAu No.: M-Z6M238-A-SG4
EXCEPTIONS
(Continued)
10. Alien for the amount shonm below and amv other amcmnt due,
Amount:
46338
Claimant:
Rancho CaLfwau Water District
Nature of Claim:
D --I mquent water charge:
Recording Date:
lane 23, 2016
Recording No:
2016-0257557 of Official RecolcL
11. A hem for the amiount shonm
below and aav other amounts due,
Amount:
$46338
CLUmant:
Rancho CaLfwnaa Water District
Nature of Claim:
Delinquent hater charges
Record.mg Date:
June 23, 2016
Recording No:
2016-0257558 of Official Records
12. Any right} of the parties
in possession of a portiom A or all of, said Land, -which rights are not disclosed by the
public records.
The Company will rem e, for reszew, a fall and complete copy of any unrecorded agreement, eomteaet license
am or lease, together wild all supplements, assignments and amendmems thereto, before issuing- any policy of title
ins ranee without excepting this item firm coverage.
The Company reserses the right to except additional items and+or make additional requirements a$er resievring said
documents_
13. Matters which may be disclosed by an inspection amdlor by a correct ALTAJNSPS Land Title Survey of said Land
that is satisfactory to the Company, mid/orby inquiry of the parties in possession thereof
14. Please be advised that our search did not disclose any open Deeds of Trust of record. If you should has-e knowledge
of any outstanding obligation, please contact the Title Department irormadiately for fintherrniesr prior to closing_
PLEASE REFER TO THE ��FORMATID U DOTES'' YD 'REQU EMENTS" SECTIONS'"RICH
FOLLOW FOR LNTDR_ILiIION NECESSARl TO COMFLEIE IRIS TRt N&JLCTION.
END OF EICEPTIONS
EXHIBIT F
-7-
FRELL iIT; RY RE -PORT Fidelity Tti atianal Title Company
Four Rxference: Ronpmugh Praaect Orde=N4.: 999-2501I M-A-5G#
REQUMEMINTS SECTION
I- Iu order t4 camplete this report, the Company requires a Statement of Infw=tiGn t4 be eGmpleted by the following
Party(s),
Party(s)= All Parties
The Company reserves the rift to add additional items or make feather mquir ments after review of the requested
Statement of Information.
NOTE: The Statement of lnfmmation is necessary to -complete the search amd examination of title ender this order.
Any title search includes matters that are indexed by mare only, and hasmg a completed Statement of
Imifi=atiom assists the Company in the elimination of certain matters which appear to imohe the parties
but im fact affect another party with the same or similar name- B.e assured that the Statement of Information
is essential and will be kept strictly confidential to this file.
END OF REQ-L, IREMEI'TS
EXHIBIT F
-8-
PRELINUh ARY REPORT
Your Refereme: Ronporgh Praaett
E'%-fORK-MOI #L NOTES SECTION
F�id�elyi�ty National Title C�pM / y
The policy of title Lnnirance will include an arbitration provision. The Company or the insured may demand
arbitration_ Arbitrable matters may include, but are not limited to, any controversy or claim between the Company
and the insured arising Curt of or relating to this policy, any service of the Company in connection with it} issuance
or the breach of a policy prinision or other obligation. Please ask your escrow or title officer for a sample copy of
the policy to be issued if you sash to re6ew the arbitration provisions and any other p¢misions pertaining to your
Title hisurnce coverage.
7 There are NO conveyances affecting said Land recorded within 24 mouths of the date of this report
Steven GG= Andrew Margo (BS- Dal_ 1
EXHIBIT F
-9-
EXHIBIT G
CURRENT NATURAL CONDITION OF THE EASEMENT AREA
(Exhibit depicting Current Natural Condition of the
Easement Area will be Provided at Time of Acceptance)
EXHIBIT G
-I-
F,XHIRIT H
COVER PAGE OF LONG-TERM MANAGEMENT PLAN
Copy of Long Term Management Plan on File in City of Temecula Public Works Department
HELIX
rrrring
Nicolas Road/Gallo Girasol
Intersection Improvements
Project
Long-term Management Plop
August 2020 1 RVR-03
Prepared for
Roripaugh Ranch JDAOwners
c/o Decolur Advisors LLC
PO Box 2316
Carlsbad, CA 92016
Prepared by.
HEUX Environmental Planning, Inc.
7578 E1 Cajon Boulevard
La Mesa, CA 91942
EXHIBIT H
-I-
EXHIBIT 2
FORM OF GRANT OF TEMPORARY CONSTRUCTION EASEMENT
AND COVENANT FOR CONSTRUCTION OF
CERTAIN PERMANENT IMPROVEMENTS
11086.0203\2828622v1
Recording requested by
and when recorded return to:
CITY OF TEMECULA
Attention: Randi Johl, Director of
Legislative Affairs, City Clerk
41000 Main Street
Post Office Box 9033
Temecula, California 92590-2764
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Assessor's Parcel No. 957-090-022 [X] Portion
Documentary Transfer Tax $0.00
This Instrument is for the benefit of the City of Temecula and is exempt from Recording Fees
(Govt. Code § 27383), Filing Fees (Govt. Code § 6103), and Documentary Transfer Tax (Rev &
Tax Code § 11922).
GRANT OF TEMPORARY CONSTRUCTION EASEMENT AND COVENANT
FOR CONSTRUCTION OF CERTAIN PERMANENT IMPROVEMENTS
This Grant of Temporary Construction Easement Agreement and Covenant for
Construction of Permanent Improvements (TCE Agreement and Covenant) is entered into as of
the date set forth below by and between Lam Ngo and Huyen Lam Tran, husband and wife as joint
tenants (collectively Grantor below), and the CITY OF TEMECULA, a municipal corporation
(City).
RECITALS
WHEREAS, Grantor is the record fee owner of that certain real property located at 31249
Indian Summer Road, Temecula, California identified as Riverside County Tax Assessor's Parcel
Number 957-090-022 (Grantor's Property) described more particularly in EXHIBIT 1 attached
hereto and incorporated herein by this reference.
WHEREAS, City seeks to construct certain public street, drainage, and related
improvements in connection with the extension of Nicolas Road from Butterfield Stage Road to
the Calle Girasol/Nicolas Road Connection, Project Number LD 19-4050 (Project).
WHEREAS, Grantor desires to grant to the City and the City desires to acquire from
Grantor an approximate 83,324 square foot Temporary Construction Easement with a term of
twelve (12) months on Grantor's Property to facilitate the City's construction of the Project,
subject to the terms and conditions set forth herein.
WHEREAS, portions of Grantor's Property are located in the floodway and based on said
location, it is necessary for the City to construct certain permanent improvements on Grantor's
Property in connection with the Project, including but not limited to the installation of riprap slope-
11086.0203\2828622v1
erosion protection, which are more particularly described below. Grantor acknowledges receipt
of a copy of the proposed plans for the Project and desires to authorize the City to construct said
permanent improvements on Grantor's Property.
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, Grantor and the City agree as follows:
1. Grant of Temporary Construction Easement. Grantor hereby grants to the City an
approximate 83,324 square foot Temporary Construction Easement with a term of twelve (12)
months (Temporary Construction Easement) on Grantor's Property to facilitate the construction
of the public street and related improvements in connection with the Project. The Temporary
Construction Easement is described more particularly on EXHIBIT A labeled "Legal Description
Temporary Construction Easement" and depicted on Exhibit B labeled "Depiction of Temporary
Construction Easement — APN: 957-090-022, Ngo/Tran Property". EXHIBIT A and EXHIBIT B
are attached to this TCE Agreement and Covenant are incorporated herein by this reference.
2. Commencement of Temporary Construction Easement. The term of the Temporary
Construction Easement will commence thirty (30) calendar days after the date on which the City
notifies Grantor in writing that it will commence its construction of the Project. The day that is
the 30th calendar day after the date of said notice is the "Commencement Date" of the Temporary
Construction Easement.
Scope of Temporary Construction Easement.
a. The Temporary Construction Easement is for the use by the City, its
contractors, subcontractors, employees and agents (collectively City Designees) for said
twelve (12) month period and the purpose and scope of this Temporary Construction Easement is
to facilitate the City's construction of the Project, including, without limitation, use of the
Temporary Construction Easement for construction staging purposes, storage of equipment and
material in connection with the City's construction of the Project.
b. City and City Designees also have the right to use the Temporary
Construction Easement area to construct the permanent improvements described more particularly
in Section 5 below within the area of the Temporary Construction Easement on Grantor's Property.
4. No Liens. The City agrees to keep the Temporary Construction Easement free of
any liens including, without limitation, liens by contractors, subcontractors, or suppliers,
engineers, architects, surveyors, or others that may have lien rights for work, arising out of the
City's use of the Temporary Construction Easement in connection with the construction of the
Project. If any such lien is filed on Grantor's Property in connection with the City's use of the
Temporary Construction Easement, the City will, at its sole cost and expense, have the lien released
and discharged of record in a matter satisfactory to the Grantor within thirty (30) calendar days of
receiving notice of the lien. If the City fails to remove the lien within such thirty (30) day period,
Grantor will have the right to remove the lien, and City, upon demand, will reimburse the Grantor
for all costs and expenses, including without limitation attorneys' fees incurred by Grantor in
connection with such removal.
11086.0203\2828622v1
5. Covenant Running with the Land — Covenant for Construction of Certain
Permanent Improvements on Grantor's Property. Grantor hereby covenants and agrees that in
consideration for payment of compensation from the City and for other good and valuable
consideration, the City and the City Designees also have the right to construct certain permanent
improvements on portions of the Temporary Construction Easement area, including, without
limitation, riprap slope -erosion protection, in the area described more particularly in EXHIBIT C,
which is attached hereto and incorporated herein by this reference. Grantor agrees and
acknowledges that City and City Designees will have no responsibility for maintenance of the
permanent improvements described in EXHIBIT C hereto after the City's construction of the
Project and that Grantor is solely responsible for all costs of maintenance of said permanent
improvements. This covenant for construction of certain permanent improvements described on
EXHIBIT C hereto in the area of the Temporary Construction Easement is a covenant running
with the land and is binding upon Grantor, Grantor's heirs, executors, administrators, successors,
and assigns and on any party that has an interest in Grantor's Property. Grantor consents to and
acknowledges that the Covenant for Construction of Certain Permanent Improvements contained
in this TCE Agreement and Covenant will be recorded in the Official Records of the County of
Riverside, California.
6. Termination of City's Right to Use Temporary Construction Easement. The
Temporary Construction Easement will expire on the earlier to occur of (a) twelve (12) months
after the Commencement Date or (b) the date that the City records a Notice of Termination of the
Temporary Construction Easement in the Official Records of the County. Upon the expiration of
the Temporary Construction Easement, the City agrees to take such actions as the Grantor may
reasonably request to evidence and give effect to the extinguishment of the City's use of the
Temporary Construction Easement and the relinquishment of the City's rights and interests in the
Temporary Construction Easement pursuant to this TCE Agreement and Covenant.
7. Insurance. Prior to entry on the area of the Temporary Construction Easement, City
will cause its contractor for the Project to procure and maintain a policy of general commercial
liability insurance naming Grantor as additional named insured covering any and all claims,
demands, and causes of action against Grantor arising out of or pertaining to the use of the
Temporary Construction Easement by or activities of City's contractor pursuant to this TCE
Agreement and Covenant. Such insurance will be maintained in force during the term of the
Temporary Construction Easement. The contractor shall procure and maintain, for the duration of
the contract, insurance against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the work by the contractor, its agents,
representatives, employees or subcontractors.
a. Minimum Scope of Insurance: Coverage shall be at least as broad as:
(1) General Liability Form No. CG 00 01 11 85 or 88.
(2) Insurance Services Office Business Auto Coverage form CA 00 01
06 92 covering Automobile Liability, code 1 (any auto). If the contractor owns no automobiles, a
non -owned auto endorsement to the General Liability policy described above is acceptable.
11086.0203\2828622v1
(3) Worker's Compensation insurance as required by the State of
California and Employer's Liability Insurance. If the contractor has no employees while
performing under this contract, worker's compensation insurance is not required, but contractor
shall execute a declaration that it has no employees.
b. Minimum Limits of Insurance: The contractor shall maintain limits no less
than:
(1) General Liability: Two Million Dollars ($2,000,000) per occurrence
for bodily injury, personal injury, and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general aggregate limit
shall apply separately to this Project/location or the general aggregate limit shall be twice the
required occurrence limit.
(2) Automobile Liability: One Million Dollars ($1,000,000) per
accident for bodily injury and property damage.
(3) Worker's Compensation as required by the State of California;
Employer's Liability: One Million Dollars ($1,000,000) per accident for bodily injury or disease.
(4) Deductibles and Self -Insured Retentions: Any deductibles or self-
insurance retentions shall not exceed Twenty -Five Thousand Dollars ($25,000).
C. Other Insurance Provisions: The general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(1) City, Temecula Community Services District, Successor Agency to
the Temecula Redevelopment Agency, their officers, officials, employees, and volunteers are to
be covered as insureds as respect to liability arising out of activities performed by or on behalf of
the contractor; products and completed operations of the contractor; premises owned, occupied or
used by the contractor; or automobiles owned, leased, hired or borrowed by the contractor. The
coverage shall contain no special limitations on the scope of protection afforded to City, Temecula
Community Services District, Successor Agency to the Temecula Redevelopment Agency, their
officers, officials, employees, agents or volunteers.
(2) For any claims related to this Project, the contractor's insurance
coverage shall be primary insurance as respect to City, Temecula Community Services District,
Successor Agency to the Temecula Redevelopment Agency, their officers, officials, employees,
agents and volunteers. Any insurance or self-insurance maintained by City, Temecula Community
Services District, Successor Agency to the Temecula Redevelopment Agency, their officers,
officials, employees, agents and volunteers shall be excess of the contractor's insurance and shall
not contribute with it.
(3) Any failure to comply with reporting or other provisions of the
policies including breaches of warranties shall not affect coverage provided to City, Temecula
Community Services District, Successor Agency to the Temecula Redevelopment Agency, their
officers, officials, employees, agents and volunteers.
11086.0203\2828622v1
(4) The contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
(5) Each insurance policy required by this TCE Agreement and
Covenant shall be endorsed to state in substantial conformance to the following: if the policy will
be cancelled before the expiration date the insurer will notify in writing to City of such cancellation
not less than thirty (30) days prior to the cancellation effective date.
(6) If insurance coverage is cancelled or, reduced in coverage or in
limits the contractor shall within two business days of notice from the insurer, phone, fax, and/or
notify City via certified mail, return receipt requested of the changes to or cancellation of the
policy.
(7) Course of construction policies shall contain the following
provisions: (1) additional insured shall be named as loss payee, and (2) the insurer shall waive all
rights of subrogation against entity.
d. Acceptability of Insurers: Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A-, VII or better, unless otherwise acceptable to City.
Self-insurance shall not be considered to comply with these insurance requirements.
C. Verification of Coverage: Contractor shall furnish City with original
endorsements effecting coverage required by this clause. The endorsements are to be signed by a
person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on
forms provided by City. All endorsements are to be received and approved by the City before
work commences. As an alternative to City's forms, the contractor's insurer may provide
complete, certified copies of all required insurance policies, including endorsements affecting the
coverage required by these specifications.
f. Subcontractors: Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
8. City's Obligations on Termination of Term of Temporary Construction Easement.
The City agrees that, as of the termination date of the Temporary Construction Easement, the City
will remove any construction equipment and materials stored in the area of the Temporary
Construction Easement in connection with the Project. Further, the City will cause the City
Designees to replace with material and like quality any hardscape, landscaping, and improvements
located in the area of the Temporary Construction Easement that are damaged in connection with
the City's use of the Temporary Construction Easement for the construction of the Project. Grantor
acknowledges that the permanent improvements constructed in the area of the Temporary
Construction Easement and described in EXHIBIT C will remain on Grantor's Property after the
construction of the Project.
9. Maintenance of Permanent Improvements on Grantor's Property. Upon the
expiration of the Temporary Construction Easement, Grantor shall, at Grantor's sole cost and
expense, operate, maintain, repair and replace (as applicable) the permanent improvements
11086.0203\2828622v 1
constructed on Grantor's Property within the Temporary Construction Easement area described on
EXHIBIT C hereto and all installations connected thereto, in good condition and repair and
otherwise in compliance with all applicable laws.
10. Notices. All notices and demands will be given in writing by certified mail, postage
prepaid, and return receipt requested, or by personal delivery. Notices will be considered given
upon the earlier of (a) personal delivery, (b) two (2) business days following deposit in the United
States mail, postage prepaid, certified or registered, return receipt requested, or (c) one (1) business
day following deposit with an overnight carrier service. A copy of all notices will be sent to
Administrator for and on behalf of the Owners. The parties will address such notices as provided
below for the respective party; provided that if any party gives notice in writing of a change of
name or address, notices to such party will thereafter be given as demanded in that notice:
City: City of Temecula
41000 Main Street
Temecula, California 92590
Attention: Aaron Adams, City Manager
Copy to: Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Attention: Peter M. Thorson, City Attorney
Grantor: Lam Ngo and Huyen Lam Tran
13341 Wilson Street
Garden Grove, California 92844
11. Miscellaneous Provisions.
a. Any amendments to this TCE Agreement and Covenant must be in writing
and duly executed by both Grantor and the City.
b. This TCE Agreement and Covenant will be construed and interpreted under,
and governed and enforced according to the laws of the State of California.
C. This TCE Agreement and Covenant contains the entire agreement between
the Grantor and the City regarding the Temporary Construction Easement and construction of
certain permanent improvements within the Temporary Construction Easement portion of the
Grantor's Property.
d. Except as otherwise provided herein, the provisions of this TCE Agreement
and Covenant will be binding on and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
e. This TCE Agreement and Covenant may be executed simultaneously in one
or more counterparts, each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
11086.0203\2828622v1
f. Each party has reviewed this TCE Agreement and Covenant and each has
had the opportunity to have its respective counsel and real estate advisors review and revise this
TCE Agreement and Covenant and that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party will not apply in the interpretation of this TCE Agreement
and Covenant or any amendments or exhibits thereto.
g. If any part, term or provision of this TCE Agreement and Covenant is held
by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the
remaining provisions will not be affected, and the rights and obligations of each party will be
construed and enforced as if this TCE Agreement and Covenant did not contain the particular part,
term or provision held to be invalid.
[SIGNATURES TO FOLLOW]
11086.0203\2828622v1
IN WITNESS WHEREOF, the Grantor and the City have entered into this TCE Agreement
and Covenant as of the date set forth below.
GRANTOR
LAM NGO AND HUYEN LAM TRAM,
husband and wife as joint tenants
Dated:
Lam Ngo
Dated:
Huyen Lam Tran
CITY OF TEMECULA,
a municipal corporation
Dated:
Aaron Adams, City Manager
ATTEST:
In
Randi Johl, JD, CMC
City Clerk
APPROVED AS TO FORM:
Peter M. Thorson,
City Attorney
11086.0203\2828622v1
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary:
11086.0203\2828622v1
(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary:
11086.0203\2828622v1
(Seal)
EXHIBIT 1
LEGAL DESCRIPTION OF GRANTOR'S PROPERTY
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW I SITUATED IN THE CITY OF TEMECULA, IN THE: COUNTY OF
RIVERSIDF, STATE OF CrAI_IFORNIA, AND 1S DESCRLAFD AS TOLI_C WS:
PARCEL 3 OF PARCEL, MAP NO. 1 M2. IN THE CITY OF TEMECULA, COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA_ AS SI10"KN BY MAP ON FILE IN BOOK 112, PAGES 28 AND 29 OF PARCEL MAPS, RECORDS OF
RIVERSIDE C'i.?l1NTY.CALIFORNIA.
MN, 957-090-WI-2
Exhibit 1
EXHIBIT A
LEGAL DESCRIPTION OF TEMPORARY CONSTRUCTION EASEMENT
APN; 957-090-022
NOOrrRAN PROPERTY
That portion of Paroef 3 of Parcel Map Nc. 1$0 2, in the City of Temecula. County of Riverside,
State of California, as shown on the Map recorded in Bonk 112, pages 28 and 29 of Parcel hasps,
in the Office of the County Recorder of said Riverside County. described as fallows:
BEGINNING at the southwesterly corner of said Parcel 3, said point hung on the nDrtherly Fight
of Way line of Nicolw5 Road (, 5.00 foot half th);
Thence along the westerly line Qf said Parcel 3 North 09'1013' West 167.45 feet, -
Thence leaving sald line-Norttr 49' 11'16- East 327.72 Feet;
Thence Nortb 81 `49'25' East 3B.23 feet to the easterly dine of said Parcel 3;
Thence along said easterly line South 08'10'35" East 342.97 feet to the southerly line of Parcel 3;
Thence along said 50uthedy lirle South 81`36'16" West 311.31 feet to the POINT OF
BEGINNING.
untaining 1.91 acres, or 83,324 Square Feel, more or Iess
This description was prepared
ley me or under my d irecGon,
1y 4L `�'0
R_ Duquette, S 7566dL ra w a.
0 No 7605
Michaei Baker IntemWional SeptiaMher 2, 2020
40810 County Center Drive, Suite 200 JN 175051
Temecula, CA 92591 Page 1 or 1
EXHIBIT A
11086-0203\2828622v1.doc -1-
EXHIBIT B
DEPICTION OF TEMPORARY CONSTRUCTION EASEMENT
APN: 957-090-022
NK/TRAN PROPERTY
60 30 0 60
SCALE: 1"=60'
ry 1
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jGHN R. C
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-- NUI-WIVE 311,3V ' - --
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ICOLAS ROAD
PX - POINT OF 13EGIFNING
( } = NDI CATES RECORD DATA PER
PM 18022, PMB 112/26-29 {
DATA TABLE SHEET 1 Cf
0 KARING/MLTA LENGTH BakerMichael '
1 NBrt 49 25"E 38.23' 1NTERNAT10NAL
EXHIBIT B
EXHIBIT C
DESCRIPTION OF PERMANENT IMPROVEMENTS TO BE CONSTRUCTED WITHIN
TEMPORARY CONSTRUCTION EASEMENT PORTION OF GRANTOR'S PROPERTY
GLJ
i
APN: 957-090-022
NGO TRAM PROPERTY
40
40
.00
00
60 NIC LA ROAD
LEGENi
a ,TEMPORARY CONSTRUCTION EASEMENT AND COVENANT
FOR CONSTRUCTION OF PERMANENT IWROVEhENTS
RIP FLAP SLOPE EROSION PROTECTION
CO VATION EASEMENT
I I086-0203\2828622v1.doc - I -
INTERNAT10NAL